2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

the original Complaint was delivered to the court, the filing of an amended complaint didnot afford the plaintiff an additional sixty days in which to file a certificate of merit. Id. at*2 (citations omitted). Consequently, as the original Complaint was filed on March 24,2011, and the certificate of merit is required to be filed within sixty days of the filing of theoriginal complaint, defendants were free to file the Notices any time after April 23, 2011.Id. at *2.(iii) Substantial ComplianceIn Booker v. U.S., 366 Fed. Appx. 425, 429 (3d. Cir. 2010), the Third Circuit reversed atrial court’s order granting a motion to dismiss for failure to timely file a certificate of merit andheld that the pro se prisoner plaintiff’s actions were “a substantial attempt to conform to therequirements of the rule.” Plaintiff was a prisoner who the trial court gave several extensions tofile a certificate of merit. Id. at 426. Within the time the trial court gave plaintiff to file acertificate of merit, plaintiff filed a letter from a physician, along with an accompanyingdocument entitled “Notice of Filing of Certificate of Merit.” Id. at 427. The letter stated that thephysician reviewed plaintiff’s medical records and essentially concluded that plaintiff’s medicalcare “warrants a closer look.” Id. Importantly, plaintiff also requested in his filing, guidance inproperly phrasing the certificate of merit and, if necessary, an extension of time to satisfy thecertificate of merit requirements. The court noted that, unlike in Womer, where the plaintiff tookno action or ignored his obligations to the court, the plaintiff, “while incarcerated and proceedingpro se and in forma pauperis, has located a qualified physician, compiled his medical records,timely filed the necessary requests for extensions of time and attempted to provide the Courtwith a compliant COM.” Id. at 429. The court found these actions constituted substantialcompliance with the rules governing certificates of merit. Id. The court vacated the districtcourt’s judgment, noting that plaintiff should be given the opportunity to file a compliantcertificate of merit. Id.Plaintiff in Shon v. Karason, 920 A.2d 1285 (Pa. Super. Ct. 2007), appeal denied, 936A.2d 41(Pa. 2007), brought a medical malpractice action against Defendants, a podiatrist and apodiatry center. Defendant doctor performed surgery to remove a neuroma on plaintiff’s foot.After the surgery, Plaintiff’s foot did not heal as expected. Plaintiffs then requested the presurgeryMRI study from Defendant. Plaintiffs alleged that the MRI showed no signs ofneuroma. Plaintiffs filed the complaint, but failed to file a certificate of merit. Defendants filed aPraecipe for Judgment of Non Pros, which was not docketed until a day later. Hours afterDefendants filed the praecipe but before it was docketed, Plaintiffs filed a certificate of merit.About a week later, Plaintiffs filed a Motion to Open or Strike Non Pros for Failure to FileCertificate of Merit. The trial court denied the motion and Plaintiffs appealed.Plaintiffs argued that they should be excused from the certificate of merit requirementbecause Defendants had access to the MRI and pathology reports. Plaintiffs asserted that thesemedical records were the equivalent of the required certificate of merit. Relying on Womer v.Hilliker, 908 A.2d 269 (Pa. 2006), the court held that Plaintiffs’ assertion was flawed. The Courtnoted that where a plaintiff takes no steps to comply with Rule 1042.3, the plaintiff is not entitledto open a judgment of non pros granted because of the plaintiff’s failure to file a certificate ofmerit.116