2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

he received inadequate treatment. Plaintiff allegedly retained an attorney to pursue a claimagainst federal prison officials for the medical treatment administered during the asthma attack.Plaintiff commenced the suit pro se and the attorney never entered an appearance. A summaryjudgment was filed against the Plaintiff and he forwarded the papers to the attorney. The motionwas extended after the attorney failed to oppose the motion and the Plaintiff eventually preparedand filed an opposition without the attorney’s assistance. The court entered summary judgmentagainst the Plaintiff. Plaintiff then commenced an action, pro se, for legal malpractice, breach ofcontract and fraud against the attorney and failed to file a certificate of merit or a motion for anextension within the sixty-day period following the complaint filing.The District Court examined whether a certificate of merit is necessary where Plaintiffalleges that his attorney breached a contract and committed fraud. The court explained thatPlaintiff had attempted to “cloak a claim based upon breach of professional negligence in thelanguage of ordinary negligence, breach of contract, or fraud.” The court held a certificate ofmerit was needed for Plaintiff’s claims of fraud and breach of contract because the claims arosefrom the professional duties defendant owed to Plaintiff and were “beyond the realm of commonknowledge and experience of laypeople.” See also Levi v. Lappin, 2009 WL 1770146 (M.D. Pa.June 22, 2009) (stating Plaintiff prisoner’s mistaken belief he was proceeding on EighthAmendment claim of denial of medical care, not medical malpractice claim, and erroneous beliefa certificate of merit claim was not required, is not a reasonable excuse for not timely filing acertificate of merit). But see Davis v. U.S., 2009 WL 890938 (M.D. Pa. March 31, 2009)(holding a certificate of merit was not needed to proceed on a claim against a prison warden,when plaintiff alleged MRSA infection was caused by the warden’s failure to follow guidelinesand provide a reasonably safe place of confinement).In Campbell v. Sunrise Senior Living Management, 2009 WL 4258070 (E.D. Pa. Nov.29, 2009), the court addressed whether Plaintiff, an independent contractor of the Defendantlong-term care facility, asserted a claim for professional liability. Plaintiff was a certifiednursing assistant who was attacked by a patient of the long-term care facility. Plaintiff allegedthe long-term care facility knew of a patient’s violent propensities, but failed to correct them.The court stated that the long-term care facility’s professional duties are to its patients, not everyinvitee who enters their building. The court noted the long-term care facility only owed ordinaryduties to Plaintiff, which only required a duty to warn of a known danger or to take steps toprevent injury from a known danger. The court denied the long-term care facility’s motion todismiss, holding Plaintiff’s lawsuit sounded in ordinary negligence and did not require the filingof a certificate of merit. See also Zatuchi v. Richman, 2009 WL 1886118 (E.D. Pa. June 30,2009) (stating intermediate care facility resident did not need to file certificate of merit for claimagainst care center operator, who was not a health care provider, which alleged that Plaintiff wasentitled to more therapy and support than she received—including a power wheelchair andaugmentive communication device).In Quinn Construction, Inc. v. Skanska USA Building, Inc., No. 07-0406, 2008 U.S. Dist.LEXIS 45980 (E.D. Pa. June 10, 2008), the District Court examined whether a certificate ofmerit is needed in a case involving claims of negligent misrepresentation against an architect.The District Court explained that merely suing an architect does not mandate the filing of acertificate of merit. The court stated the key issue was whether Plaintiff alleged the architect123