2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

Plaintiffs further asserted that Rule 1042.3 does not apply to the podiatry center becauseit is not a licensed professional. The court held that the podiatry center is a health care providerfor purposes of the certificate of merit requirement. The court explained that Rule 1042.1 refersto the MCARE act in defining a “health care provider.” MCARE defines a “health careprovider” to include a corporation or professional partnership. A health care provider need notbe licensed; mere state approval is sufficient. Thus, the court held that the podiatry center is ahealth care provider and Rule 1042.3 applied.Lastly, Plaintiffs contended that their certificate of merit was timely filed because it wasdocketed before Defendants’ Praecipe for Judgment of Non Pros. The court, however, indicatedthat Plaintiff’s certificate of merit was not timely; it was about two months overdue.Additionally, Rule 1042.6 requires the prothonotary to enter a Judgment of Non Pros for failureto file a certificate of merit within the specified time so long as there is no pending motion toextend the time to file a certificate of merit. Furthermore, Defendants filed their Praecipe forJudgment of Non Pros before Plaintiffs filed their certificate of merit. The court also noted thatthere was no pending motion for an extension of time to file a certificate of merit. Accordingly,the court affirmed the trial court’s ruling.In Ditch v. Waynesboro Hospital, 917 A.2d 317 (Pa. Super. Ct. 2007), aff’d, 17 A.2d 310(Pa. Jan. 18, 2011), the complaint alleged that the decedent, who had suffered a stroke and beentaken to the emergency department at the Defendant hospital, fell from her hospital bed, struckher head on the floor and suffered a fractured skull and subdural hematoma from which she diedthree days later. Plaintiff, the administratrix of the patient’s estate, alleged that the patient’sdeath was caused by the negligence of the hospital, in failing to properly restrain the patient,failing to train the staff on proper procedures in transporting patients and in leaving the patientalone while she was being transported.Defendant filed preliminary objections based on lack of specificity and failure to file acertificate of merit. Plaintiff filed an amended complaint but did not file a certificate of merit.The hospital filed a Praecipe for Judgment of Non Pros pursuant to Rule 1042.6 and judgmentwas entered. About one week later, Plaintiff filed a petition to open this judgment and also fileda certificate of merit. The trial court denied the petition, finding that the complaint raised aprofessional negligence claim and so required a certificate of merit.On appeal, Plaintiff argued that her complaint contained only claims of ordinarynegligence, of a “slip and fall” type, and that, therefore, no certificate of merit was required. TheSuperior Court disagreed, noting that the events involved all occurred during the course ofmedical treatment and also involved, at least to some extent, medical judgments. The courtfurther disagreed with Plaintiff’s argument that no expert testimony would be required to proveher case and that this established that her claim was not one of medical negligence. The courtstated that expert testimony would, in fact, be required to prove her claims, that her claims werefor professional negligence, and that accordingly, a certificate of merit was required.The Superior Court also disagreed with Plaintiff’s arguments that Defendant was requiredto raise by preliminary objections on the issue of whether the complaint asserted a professionalclaim, and that the amended complaint served to withdraw the original complaint and to117