2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

The Third Circuit affirmed the District Court’s decision and held that the District Courthad correctly applied Rule 1042.3 as substantive law. The Third Circuit further held that thedecision to involuntary commit an individual is a question of medical judgment and Defendant’sconduct in admitting Plaintiff constitutes “an integral part of the process of rendering medicaltreatment.” As a result, Rule 1042.3 was applicable. The Court further noted that at the timeDefendant filed its Rule 12(b)(6) motions, the sixty-day window for filing a certificate of merithad not yet closed. Therefore, even if the Rule 1042.3 defense were required to be raised in aRule 12(b)(6) motion, Defendant did not waive it. The defense was not “then available” toDefendant under Rule 12(g). Accordingly, Defendant was entitled to raise it in a separatemotion. Thus, Rule 1042.3 applied and Plaintiff was required to file a certificate of merit.In Lopez v. Brady, No. 4:CV-07-1126, 2008 U.S. Dist. LEXIS 73759 (M.D. Pa. Sept. 25,2008), Plaintiff, a prisoner, filed a claim against the United States pursuant to the Federal TortClaims Act, alleging he failed to receive proper medical care while incarcerated. The courtnoted that the government’s duty of care was one of ordinary diligence, but Plaintiff’s claimsconstituted allegations of medical malpractice, triggering the need for filing a certificate of merit.The court noted “Plaintiff’s incarceration or pro se status is not a viable basis upon which toexcuse compliance with Rule 1042.3.” The court dismissed Plaintiff’s claims, finding thatPlaintiff needed to file a certificate of merit and failed to present a reasonable explanation orlegitimate excuse for not timely filing a certificate of merit. See also Glenn v. Mataloni, 949A.2d 966 (Pa. Commw. Ct. 2008) (holding Plaintiff’s motion to extend time to file a certificateof merit was properly denied where Plaintiff’s motion only stated there was a “difficulty” insecuring a certificate of merit and did not set forth any specific actions Plaintiff took to secure acertificate of merit).In D.V. v. Westmoreland County Children’s Bureau, No. 07-829, 2008 U.S. Dist. LEXIS15951 (W.D. Pa. Mar. 3, 2008), the court examined whether a certificate of merit is required toassert a claim under federal law pursuant to 42 U.S.C. § 1983, alleging violations of the First andFourteenth Amendments. Plaintiff’s claims arose out of a report issued by a psychologist, whowas hired by Westmoreland County Children’s Bureau and resulted in the suspension ofPlaintiff’s custodial rights of his children. The court stated the standard for determining whethera right conferred under the United States Constitution was violated is different than the standardfor determining whether there was a violation of state tort law. The court explained that the DueProcess Clause is not implicated by a negligent act. The court further determined that when a§1983 claim is asserted, the court must look at the underlying substantive right that was violated,which Plaintiff asserted was a violation of his United States Constitutional Rights.The court also examined Plaintiff’s argument Rule 1042.3 is pre-empted by §1983. Thecourt further examined whether a state procedural rule, such as a notice of claim provision, wasapplicable to §1983 actions brought in federal court. The specific question for the court was“whether the state statute was ‘indispensible’ to the federal scheme of justice, requiring thefederal court to borrow it under 42 U.S.C. § 1988.”The court followed the three step analysis required by §1988, for determining whetherRule 1042.3 is indispensible to the federal scheme of justice. The court stopped their analysis atstep one, finding step one was met because “this state rule is not vital to the adjudication of126