2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

The pro se plaintiff in Bifulco v. SmithKline Beecham, No. 06-3657, 2007 U.S. Dist.LEXIS 68850 (E.D. Pa. Sept. 18, 2007), alleged that medication he was prescribed caused hisalcoholism to relapse, resulting in the car accident. Consequently, Plaintiff filed suit againstvarious Defendants, including the prescribing physician. Plaintiff filed a certificate of meritwithin the sixty day window, but the certificate of merit failed to conform to Rule 1042.3.Following Plaintiff’s failure to file a conforming certificate of merit, Defendant physician filed amotion to dismiss the medical malpractice allegation. The court stated that Plaintiff “[conceded]that he possesses no written statement by a licensed medical professional verifying the merits ofhis malpractice claim.” Accordingly, the court granted Defendant physician’s motion.Interestingly, the court noted that although Plaintiff had no reasonable excuse, it wouldgrant Plaintiff an opportunity to cure the defect. The court explained that it was giving Plaintiffthe opportunity because he is pro se. “Should [Plaintiff] independently obtain a medical expertwho is willing to supply the written statement required under Rule 1042.3(a)(1), [Plaintiff] mayfile a motion for leave to reinstate his medical malpractice claim against [Defendant physician]within thirty (30) days . . . “ But see Maruca v. Hynick, No. 3:06-cv-00689, 2007 U.S. Dist.LEXIS 13302 (M.D. Pa. Feb. 27, 2007) (pro se Plaintiff’s argument he was unaware ofcertificate of merit requirement and explaining that to grant him another opportunity “wouldcompletely contradict the purpose of [Rule 1042.3], which is to prevent frivolous [lawsuits]against professionals[.]”).In Nuyannes v. Thompson, No. 11-2029, 2011 WL 5428720, *1 (E.D. Pa. Nov. 8.2011), the court held that a party’s difficulty in obtaining counsel may constitute goodcause to extend time for the filing of a certificate of merit. In Nuyannes, plaintiffs filed apro se Complaint, alleging medical negligence, on September 19, 2011, but did not obtaincounsel until immediately preceding the filing of his First Amended Complaint onSeptember 19, 2011. Id. at *1, *3. The court, in granting plaintiff’s request for anextension of time in which to which a certificate of merit, found that, once plaintiffobtained counsel, this counsel had taken all appropriate steps to promptly move the caseforward. Id. at *3. Further, the court reasoned that plaintiff’s extension should be grantedbecause, notwithstanding the delay occasioned by plaintiff’s pro se status, nothing in thecase’s procedural history suggested that plaintiff would hinder the progress of the suit byseeking a series of extensions. Id.(ii)Timeliness Of Notice Of Intent To Enter Judgment OfNon ProsThe Nuyannes court also provided guidance regarding when a party may file aNotice of Intent to Enter Judgment of Non Pros in the event the opposing party fails to filea Certificate of Merit. As noted, plaintiffs filed a Complaint alleging malpractice on March24, 2011, and then a First Amended Complaint on September 19, 2011. 2011 WL 5428720at *1. Defendants filed Notices of Intent to Enter Judgment of Non Pros on September 23and 30, 2007. Id. Plaintiffs challenged these Notices as premature because they weresubmitted prior to the elapse of thirty-one days after the filing of plaintiff’s First AmendedComplaint. Id. at *2. The court disagreed with plaintiffs, holding because that the term“filing” in Rule 1042.6(a) refers to the “initial commencement of an action,” i.e. the date115