Clarifying Qualifications Necessary To Provide a Written Statement in Support of a Certificate of Merit

Pennsylvania – Health Care Liability

Key Points:

• Certification of merit filed by a non-practicing physician who is also an attorney is insufficient to meet the standard.
• Certification by unqualified physician subject to sanctions.

A recent Philadelphia Court of Common Pleas decision Fallon v. Hahnemann Hosp. Univ. Medivac, 2011 Phila. Ct. Com. Pl. LEXIS 166 (July 7, 2011) addresses who may qualify as an appropriate licensed professional for the purposes of submitting a certificate of merit in a medical malpractice claim. In Fallon, the plaintiff's decedent underwent a splenectomy in 1995 as treatment for hereditary shperocytosis. On December 27, 2004, the decedent began to feel unwell. The next evening she developed a rash and was immediately transported to St. Mary Medical Center, where she was intubated at 11:40 p.m. At 1:15 a.m., the decedent was transported by the defendant Hahnemann Medivac to Children's Hospital of Pennsylvania, where she ultimately died. The plaintiff's decedent filed a medical malpractice claim against a number of defendants, including Hahnemann University Hospital Medivac. Plaintiff's counsel filed a certificate of merit affirming that an appropriate licensed professional had supplied a written statement that the defendant, Hahnemann, deviated from the acceptable professional standard of care.

Subsequently, Hahnemann filed a motion for summary judgment based on the plaintiff's failure to submit an expert report against it. The plaintiff did not oppose the motion for summary judgment. Upon the grant of summary judgment, Hahnemann exercised its right pursuant to Pa. R.C.P. 1042.8(a) and requested a copy of the written statement upon which the plaintiff's certificate of merit was based. The written statement was provided by a doctor, who was also a lawyer, and was titled "Confidential Work Product Re: Jenna Fallon." Furthermore, the doctor's curriculum vitae revealed that he did not possess an unrestricted license to practice medicine and that he had not been in the active practice of medicine or teaching in a relevant field for over 20 years. Hahnemann then filed a motion for sanctions against plaintiff's counsel for improperly certifying that an appropriately licensed professional supplied a written statement regarding the existence of a reasonable probability that the standard of care was violated by the defendant in question. The Court of Common Pleas found that plaintiff's counsel had improperly filed a certificate of merit and ordered him to pay the defendant's reasonable attorney's fees and expenses.

In reaffirming its ruling, the Honorable Allen Tereshko addressed a number of improprieties in the written statement obtained by the plaintiff. He first noted the difference between a practicing attorney evaluating a case on the legal merits, which would be protected by the work product privilege, and contrasted it with the discoverability of the written statement provided by an appropriately licensed professional, which is discoverable once all claims against a defendant are dismissed or a verdict is entered. Judge Tereshko noted that, marking the written statement "Confidential Work Product" indicates a legal opinion, and, the mere fact that the author is also a doctor does not convert the opinion into such.

Moreover, in addressing whether the doctor was properly qualified to provide a written statement in support of a certificate of merit, Judge Tereshko held that the author of any statement propounded against an entity covered under Mcare must meet the expert qualification standards of Mcare. Specifically, the Mcare Act Section 512(b), governing medical testimony, including testimony as to the standard of care, informed consent, causation and the nature and extent of an injury, states that the expert must meet the following qualifications to testify as an expert: (1) possess an unrestricted physician's license to practice medicine in any state or District of Columbia; and (2) be engaged in or retired within the previous five years from active clinical practice or teaching. Further, an expert testifying to the manner of care must also meet the following qualification: he must be substantially with the "applicable standard of care for the specific care at issue at the time of the alleged breach of the standard of care." Section 512(c)(1). The physician must "practice in the same subspecialty as the defendant physician, or in a subspecialty which has a substantially similar standard of care for the specific care at issue." Section 512(c)(3). Judge Tereshko noted that the plaintiff's doctor did not have an unrestricted license and had not practiced or taught in the same field or specialty as the defendant in the preceding five years and, thus, did not qualify to render an opinion as to Hahnemann. Therefore, the plaintiff's certification that an appropriately licensed professional provided a written statement in support of a certificate of merit was improper and subject to sanctions.

As such, the more stringent Mcare expert qualification standards apply to licensed professionals providing written statements in support of a plaintiff's certificate of merit. These more stringent standards can provide a basis for sanctions following the conclusion of the case, if the licensed professional providing the statement in support of the certificate of merit fails to qualify as an expert under the Mcare Act, pursuant to Pa. R.C.P. 1042.8(b).

*Elizabeth is an associate in our Philadelphia, Pennsylvania, office. She can be reached at 215.575.2599 or eaunderwood@mdwcg.com.

Defense Digest, Vol. 17, No. 4, December 2011