2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

The Court of Common Pleas ultimately ruled in favor of Defendant, analyzing thedoctrine of informed consent under Pennsylvania law and holding that,[a] medical provider complie[s] with the consent requirements ifhe or she disclose[s] risks and alternatives in accordance withacceptable medical standards. Hence . . . a claim of lack ofinformed consent falls within the boundaries of Pa.R.C.P. §1042.3(a). As such, a Certificate of Merit is required.Plaintiff appealed to the Superior Court, 917 A.2d 875 (Pa. Super. Ct. 2007). On appeal,the court affirmed the lower court’s decision. The court explained that “[a]t its core, this actionrequired a showing that [defendants] failed to conform to a specific acceptable professionalstandard, namely ‘[to] provide patients with material information necessary to determine whetherto proceed with the surgical or operative procedure, or to remain in the present condition.’”Thus, the trial court correctly found that a Rule 1042.3 certificate of merit was required for aclaim of lack of informed consent.(ii)Applicability of Federal and State Law in FederalCourtIn Liggon-Redding v. Estate of Robert Sugarman, 659 F. 3d 258 (3 rd Cir. 2011),infra, the Third Circuit held definitively that Pennsylvania Rule of Civil Procedure 1042.3,mandating a certificate of merit in professional negligence cases, is substantive law andmust be applied by federal courts.In Everett v. Donate, 2010 WL 1052944, * 3 (M.D. Pa. Mar. 22, 2010), aff’d, 397 Fed.Appx. 744, (3d Cir. 2010) the court addressed whether it was required to apply Rule 1042.3when it was not sitting in diversity and was instead addressing pendent state claims ofnegligence. The court cited to Abdulhay v. Bethlehem Medical Arts, 2005 WL 2416012 (E.D.Pa. Sept. 28, 2010), and held that under the Erie doctrine, “federal courts must apply [Rule1042.3] to state law claims arising under pendent jurisdiction.” Id. The court also noted thatplaintiff’s incarceration or pro se status is not a viable excuse for plaintiff’s failure to complywith Rule 1042.3. Id. at *4. The court further noted that Rule 1042.3 does not require that themoving party allege it suffered prejudice by plaintiff’s failure to file a certificate of merit. Id.Iwanejko v. Cohen & Grigsby, P.C., 249 Fed. Appx. 938 (3d. Cir. 2007) (notprecedential), involved an attorney, who had a psychotic breakdown at work. He wasinvoluntarily committed to a mental health center. After a brief stay, Plaintiff attorney returnedto work subject to a work agreement, but was subsequently terminated for violating theagreement. Plaintiff filed suit against multiple Defendants, including the mental health center.Defendant filed a motion to dismiss based upon Plaintiff’s failure to file a certificate of merit andthe trial court dismissed Plaintiff’s claims against the mental health center. On appeal, Plaintiffargued that his claim did not invoke Rule 1042.3. Additionally, Plaintiff maintained thatDefendant waived the certificate of merit defense by failing to raise it in a previous Rule 12(b)(6)motion.125