2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

deviated from any professional standard, which would mandate the filing of a certificate of merit.The court examined Section 522 of the Restatement (Second) of Torts, which Pennsylvania hasadopted “to clarify the tort of negligent misrepresentation as it applies to those in the business ofsupplying information where it is foreseeable that the information will be relied on by thirdparties.” The court opined that “the tort will serve the overall public interest by discouragingnegligence among design professionals, while not requiring any more of them than is required bythe traditional reasonable man and foreseeability tort paradigm applicable to others.” The courtheld, the tort of negligent misrepresentation does not require expert testimony because theapplicable standard of care is the traditional reasonable man standard. Thus, a certificate ofmerit is not needed to support a claim of negligent misrepresentation against a designprofessional.In Stroud v. Abington Memorial Hospital, 546 F. Supp. 2d. 238, (E.D. Pa. 2008), theCourt examined whether an entry of judgment of non pros for a corporate negligence claimagainst a hospital was proper, where Plaintiff only filed a timely certificate of merit setting forthclaims of vicarious liability against the hospital. The court explained that while Plaintiff filed anamended certificate of merit, supporting the corporate negligence claims, this certificate of meritwas filed after the defendant hospital filed a motion to dismiss (which is the federal mechanismfor enforcing the failure to file a certificate of merit). The court found that Plaintiff had properlypleaded a claim of corporate negligence against the hospital, but Plaintiff’s certificate of meritsupporting a corporate negligence claim was filed more than sixty days after the filing of theComplaint and after Defendant’s motion to dismiss. The Court held Plaintiff did not file a timelycertificate of merit regarding the corporate negligence claim, and the claim would be dismissedunless Plaintiff could establish a reasonable explanation or legitimate excuse for not timely filinga certificate of merit. The court granted Plaintiff’s corporate negligence claim without prejudice,and allowed Plaintiff leave to seek reinstatement to present evidence of a reasonable explanationor legitimate excuse for not filing the certificate of merit.In Pollock v. Feinstein, 1 Pa. D. & C.5th 38 (Phila. Cty. Ct. Com. Pl. Mar. 28, 2006),aff’d, 917 A.2d 875 (Pa. Super. Ct. 2007), Plaintiff brought suit against her physician aftersustaining a laceration to her anterior abdominal wall during a laparoscopic tubal ligation andIUD removal. Plaintiff claimed that Defendant failed to provide her with material informationregarding the procedure, such as risks, consequences and alternatives necessary for her todetermine whether to proceed with the surgery, and that Defendant was therefore negligent forfailing to obtain her conformed consent.In response, Defendants argued that failing to obtain informed consent constitutes adeviation from acceptable medical standards, and that Plaintiff was therefore required to file acertificate of merit in order to maintain her cause of action. Given that Plaintiff failed to timelyfile a certificate of merit, in turn, Defendant moved for the entry of a judgment of non pros.Plaintiff countered by arguing that she was not required to file a certificate of merit because hermalpractice action was based solely on lack of informed consent. The court, in turn, wasconfronted with the question of whether “a claim for lack of informed consent constitutes adeviation from ‘an acceptable professional standard’ warranting the filing of a certificate of meritpursuant to the rules of civil procedure.”124