Is a certificate of merit required when a plaintiff files a claim sounding in professional negligence but subsequently attempts to assert that the issue involves simple negligence?

This case involves the issue of whether a certificate of merit is required when a plaintiff files a claim sounding in professional negligence but subsequently attempts to assert that the issue involves simple negligence.

The plaintiff was a prison inmate who underwent an ear cleaning procedure. He alleged that the defendants, two nurses, deviated from the standard of care when they performed an earwax cleaning procedure and a nurse used a syringe to insert scalding hot water into his ear. Following the initial complaint, the plaintiff filed an amended complaint sounding in negligence. The defendants filed a notice of enter judgment of non pros for failure to file a certificate of merit, after which the prothonotary entered a judgment of non pros. The plaintiff moved to strike the judgment, which was denied by the court. On appeal, the plaintiff argued that a certificate of merit was not necessary because the amended complaint involved a claim for simple negligence that was filed to replace the previous complaint of professional liability.

However, the Superior Court of Pennsylvania agreed with the trial court, which stated that where a complaint is predicated upon facts constituting medical treatment, the action must be characterized as professional negligence. The amended complaint in this case raised a cause of action for negligence, which was premised upon an alleged failure of the nursing staff to properly remove a buildup of earwax. Therefore, the plaintiff’s negligence claim in the amended complaint was a claim for professional liability and a certificate of merit was required.

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