2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

to any professional who is alleged to have deviated from the standard of care, whether or notsuch professional is named as a defendant. If a plaintiff files a certificate of merit stating that noexpert testimony is required, the plaintiff will be precluded from presenting expert testimonyregarding the standard of care and causation. If a plaintiff fails to file a certificate of meritwithin the required time, and no extension has been obtained or requested, a judgment of nonpros is to be entered by the Prothonotary upon praecipe of the defendant following Rule 1042.6notice. See Pa. R. Civ. P. 1042.6.No discovery, other than a request for production of documents and things, or entry uponproperty for inspection and other purposes, may be sought by plaintiff prior to the filing of acertificate of merit. See Pa. R. Civ. P. 1042.5.The “appropriate licensed professional” referred to in the certificate of merit does nothave to be the same person that the plaintiff uses as an expert at trial, but this “appropriate”person must, in a medical malpractice case, meet the qualifications for an expert set forth inSection 512 of the Medical Care Availability and Reduction of Error (MCARE) Act, 40 Pa.Cons. Stat. § 1303.512.In connection with the certificate of merit requirement, the court also amended severalother miscellaneous Rules, specifically Pa. R. Civ. P. 229, 1026, and 4007.2, which relate todiscontinuance, time for filing, and when leave of court is required for discovery, respectively.(a)Amendments to Rule 1042.1, 1042.2, and 1042.3; Renumberingof Rule 1042.6 as 1042.7, Renumbering of Rule 1042.7 as1042.8; Renumbering of Rule 1042.8 as 1042.9; andPromulgation of New Rule 1042.6Rule 1042.1 was rewritten to clarify that the rule applies to organizations responsible forthe actions of a licensed professional, including partnerships, unincorporated associations,corporations, or similar entities. Rule 1042.1 also makes it explicit that the claim of lack ofinformed consent is a claim for professional liability. The note to Rule 1042.2 was rewritten totake account for the new procedure created by Rule 1042.6, which is discussed below.Rule 1042.3 was also amended to take into account the new procedure created by Rule1042.6. Rule 1042.3 now provides that a motion to extend the time for filing a certificate ofmerit must be filed “by the thirtieth day after the filing of a notice of intention to enter judgmentof non pros . . . or on or before the expiration of the extended time where a court has granted amotion to extend the time to file a certificate of merit, whichever is greater.” The Rule stillprovides for the tolling of the time period to file a certificate of merit until the court rules uponthe motion to extend time to file a certificate of merit.The newly created Rule 1042.6, provides that a defendant seeking judgment of non prosmust file a written notice of intention to file a praecipe for non pros, no sooner than the thirtyfirstday after filing the complaint. Rule 1042.6 also provides, after a defendant files a notice ofintention to seek judgment of non pros, a plaintiff may file a motion seeking a determination bythe court whether a certificate of merit is necessary. The filing of this motion tolls the timeperiod within which a certificate of merit must be filed. If the court rules a certificate of merit is110