Civil Action – Medical Malpractice – Certificate of Merit – Direct Liability – Vicarious Liability.

 

1. A petition seeking relief from a Judgment of non pros must allege that the petition is timely filed; there is a reasonable explanation or legitimate excuse for the inactivity or delay, and there is a meritorious cause of action.
2. The Pennsylvania Rules of Civil Procedure require that in any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a Certificate of Merit signed by the attorney or party.
3. A Certificate of Merit is a written statement provided by an appropriate licensed professional that can take one of three forms.  First, the Certificate can assert that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm.  Second, the report can claim that the deviation from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard.  Third, the statement can aver that expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.
4. A separate Certificate of Merit shall be filed as to each licensed professional against whom a claim is asserted.  If a complaint raises claims of both direct and vicarious liability against the same defendant, the attorney for the plaintiff, or the plaintiff if not represented, shall file either a separate Certificate of Merit as to each claim raised, or a single Certificate of Merit stating that claims of direct and vicarious liability are raised.
5. The Pennsylvania Supreme Court has found that as a general proposition, Rule 126 is available in professional liability actions and may be applied to Pa.R.C.P. No. 1042.3, as long as its requirements are met.  However, a plaintiffs’ failure to take any steps to comply with the terms of Pa.R.C.P. No. 3051 was not the sort of default that Pa.R.C.P. No. 126 was meant to cover.
6. This Court found that Plaintiff failed to meet the requirements for relief from a Judgment of Non Pros because Plaintiff did not file the required Certificate of Merit in regard to Plaintiff’s claim for vicarious liability and did not provide a reasonable explanation or legitimate excuse for this failure.

Plaintiff’s Motion to Strike Defendant’s Praecipe for Entry of Partial Judgment of Non Pros.  C.P. of Lebanon County, Civil Action-Law, No. 2011-01950.

Thad M. Gelsinger, Esquire, for Plaintiff

Matt Rappleye, Esquire, for Defendant

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION

  

LINDA L. FOCHT, Executrix of the       :

Estate of Helena E. Hamaker, Deceased  :

Plaintiff                                                      :

                                                                   :

          v.                                                       :                            NO. 2011-01950

                                                                   :

STONERIDGE RETIREMENT              :

LIVING                                                     :

Defendant                                                  :

                                                                  

ORDER

 

AND NOW, this 23^rd day of April, 2013 upon careful consideration of the record, Plaintiff’s Motion to Strike Defendant’s Praecipe for Entry of Partial Judgment of Non Pros is HEREBY DENIED. 

   BY THE COURT:

     ____________________________, J.

CHARLES T. JONES, JR.

 

 

 

Cc:    Thad M. Gelsinger, Esquire // Leisawitz Heller Abramowitch Phillips, P.C., 2755 Century Boulevard, Wyomissing, PA 19610

Karen E. Minehan, Esquire // 17 North Second Street, 16^th Floor, Harrisburg, PA 17101

 

 

 

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION

 

 

LINDA L. FOCHT, Executrix of the       :

Estate of Helena E. Hamaker, Deceased  :

Plaintiff                                                      :

                                                                   :

          v.                                                       :                            NO. 2011-01950

                                                                   :

STONERIDGE RETIREMENT              :

LIVING                                                     :

Defendant                                                  :

                                                                  

 

APPEARANCES:

 

Thad M. Gelsinger, Esquire                                         For Plaintiff

Leisawitz Heller Abramowitch Phillips, P.C.

 

Matt Rappleye, Esquire                                                         For Defendant

Stevens & Lee

 

 

OPINION BY JONES, JR., J.:

 

Before the Court is a Petition to Strike Defendant Stoneridge Retirement Living’s Praecipe for Entry of Partial Judgment of Non Pros.  This is a medical malpractice action brought by Linda L. Focht, Executrix of the Estate of Helena E. Hamaker (hereinafter “Plaintiff”) after Mrs. Hamaker passed away.  For the reasons that follow, Plaintiff’s Motion to Strike Defendant’s Praecipe for Entry of Partial Judgment of Non Pros is denied.

 

 

1. I.                  FACTUAL HISTORY

The facts in the light most favorable to the Plaintiff are as follows. On September 27, 2010, 87 year old Helena E. Hamaker (hereinafter “decedent”) was admitted to the Reading Hospital and Medical Center for treatment due to complications arising from congestive heart failure.  She also had an extensive medical history including: acute diastolic congestive heart failure, new onset atrial fibrillation, severe mitral valve regurgitation and tricuspid regurgitation, hypertensions, moderate pulmonary hypertension, history of breast cancer with a left mastectomy, glaucoma, osteopenia, osteoarthritis, hypernatremia, and leukocytosis of unclear etiology.  To treat the congestive heart failure, decedent was placed on Coumadin, an anticoagulant, to thin her blood.  On October 5, 2010, Decedent was discharged from the Reading Hospital and Medical Center and sent to Defendant’s facility in Myerstown for rehabilitation with orders to have her blood tested regularly to ensure the Coumadin was performing properly.

On October 11, 2010, Decedent developed a nose bleed at approximately 4:30 a.m.  The nose bleed continued on and off for the entire morning.  The Stoneridge nursing staff made a variety of attempts to stop the decedent’s nosebleed, including ice packs, holding her nostrils closed, and packing them with gauze.  Sometime in the early afternoon, decedent was transferred to Good Samaritan Hospital.  When the decedent arrived at the hospital, her “INR”[1] was in excess of three (3) times the maximum appropriate level for patients on Coumadin.  By the time decedent’s nose bleed was stopped she had lost and swallowed a large amount of blood.  Because of the amount of blood lost and swallowed, decedent went into renal failure.  The staff at Good Samaritan Hospital was able to get decedent’s renal function to return.  An echocardiogram on October 15, 2010 showed the mitral tricuspid regurgitation and pulmonary hypertension continued as before the nose bleed.  A chest x-ray on October 18, 2010 showed improving congestive heart failure.  Decedent spent ten (10) days at Good Samaritan Hospital and nineteen (19) days in the Reading Hospital and Medical Center as a result of the organ damage and other medical complications suffered from the nose bleed on October 11, 2010.  Decedent was discharged from the Reading Hospital and Medical Center to the Phoebe Berks Health Care Center and into another long-term care facility.  On October 22, 2010, decedent developed an increase in shortness of breath and was brought to the Reading Hospital.  After many attempts at different treatments, it was determined she was in the end stage of congestive heart failure and decedent’s family placed her in hospice care.  Decedent died on November 19, 2010 from severe congestive heart failure.

Plaintiff alleges that decedent died as a direct consequence of the organ damage and physical stress sustained from both the lost blood and the large amount of blood swallowed as a result of the nose bleed.  Plaintiff also claims that as a direct and proximate result of the nose bleed, decedent suffered physical pain and suffering, as well as loss of life’s pleasures, extreme emotional distress and humiliation, mental anguish, and medical bills.  Furthermore, Plaintiff argues that the decedent’s injuries are a direct and proximate result of the negligent and intentional conduct of the Defendant.

 

1. II.               PROCEDURAL HISTORY

 

Plaintiff initiated this action against Defendant by filing a Complaint on October 3, 2011.  Plaintiff filed an Amended Complaint on March 15, 2012.  Defendant filed a Notice of Intention to Enter Judgment of Non Pros on March 23, 2012 for failure to file a Certificate of Merit.  The requisite Certificate of Merit was filed by Plaintiff on March 27, 2012.  On April 16, 2012, Defendant filed its Preliminary Objections to Plaintiff’s Amended Complaint.  Defendant’s Preliminary Objections were sustained in part and granted in part.

On September 28, 2012 Plaintiff filed a Second Amended Complaint.  On October 23, 2012, Defendant filed a Praecipe to Enter Judgment of Non Pros as to Plaintiff’s claim of vicarious liability.  On November 5, 2012 Plaintiff filed a Motion to Strike Defendant’s Praecipe for Entry of Partial Judgment of Non Pros.    Defendant filed an Answer to Complaint and New Matter on November 9, 2012.  On November 13, 2012 Plaintiff filed an Answer to New Matter.  On November 19, 2012, Plaintiff filed to Open Partial Judgment of Non Pros.  On November 20, 2012, Defendant filed an Answer to the Motion to Strike Praecipe for Entry of Partial Judgment of Non Pros.  Plaintiff’s Motion to Strike Defendant’s Praecipe for Entry of Partial Judgment of Non Pros was listed for Argument Court held on January 25, 2013. The parties appeared before this Court, presented oral argument and submitted briefs. The matter is now ripe for disposition

 

1. III.           STANDARD OF REVIEW

A petition seeking relief from a Judgment of non pros must allege that: (1) the petition is timely filed; (2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and (3) there is a meritorious cause of action.

Pa.R.C.P. 3051(b).

We find that both the first and third requirements are met and will focus our opinion on the second requirement: whether there is a reasonable explanation for the Plaintiff’s inactivity.

 

1. IV.           DISCUSSION

Plaintiff argues that their Certificate of Merit is substantially in the form required per the Pennsylvania Rules of Civil Procedure, there is no inactivity or delay in the filing, and therefore the Judgment should be sticken.  To receive a Judgment for Non Pros, a Defendant must show, among other things, that no Certificate of Merit has been filed.  In the instant case, Plaintiff asserts that their Certificate of Merit substantially complies with Pennsylvania Rule of Civil Procedure Rule 1042.3.  The Pennsylvania Rules of Civil Procedure require “[i]n any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a Certificate of Merit signed by the attorney or party…”  Pa.R.C.P. 1042.3(a).  This Certificate of Merit is a written statement provided by an appropriate licensed professional that can take one of three forms.  First, the Certificate can assert “that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm.”  Pa.R.C.P. 1042.3(a)(1).  Second, the report can claim that the deviation “from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard.”  Pa.R.C.P. 1042.3(a)(2).  Third, the statement can aver that “expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.”  Pa.R.C.P. 1042.3(a)(3).

A separate Certificate of Merit shall be filed as to each licensed professional against whom a claim is asserted. Pa.R.C.P. 1042.3(b)(1).  If a complaint raises claims under both subdivisions (a)(1) and (a)(2) against the same defendant, the attorney for the plaintiff, or the plaintiff if not represented, shall file either a separate Certificate of Merit as to each claim raised, or a single Certificate of Merit stating that claims are raised under both subdivisions (a)(1) and (a)(2).  Pa.R.C.P. 1042.3(b)(2).

In the instant case the Plaintiff filed a Second Amended Complaint that raised a claim for direct corporate negligence and a claim for vicarious liability.  A Certificate of Merit was filed supporting a claim under (a)(1).   No Certificate of Merit for Plaintiff’s vicarious liability claim, raised under subdivision (a)(2), was filed.

Plaintiff cites Kennedy v. Butler Memorial Hosp, 901 A.2d 1042 (Pa.Super. 2006) where the Superior Court found that where a plaintiff brings an action for damages under corporate negligence and negligence arising from vicarious liability/respondeat superior, it is appropriate for plaintiff to file a Certificate of Merit in the form of Pa.R.C.P. 1042.3(a)(1).  Rule 1042.3(a)(2) is to be used only when the defendant has ‘solely’ a vicarious liability claim.  Id. at 1046.

We find that the Kennedy case is no longer accurate under Rule 1042.3 as it exists today.  The incident in the Kennedy case occurred before the 2005 amendment to the statute that added subdivision (b)(2).  The plain language of the statute as it is written today clearly requires Plaintiff to file a Certificate of Merit for its vicarious liability claims.

Plaintiff alleges that they were blindsided by the filing of the Entry of Judgment in October 2012 because the Notice of intention to enter was filed in March of 2012.  There is no requirement that a subsequent Notice of Intention needs to be filed if the Entry of Judgment is not
immediately filed.

Plaintiff also argues that equity requires that their substantial compliance to the Rule should permit them to proceed with the vicarious liability claims.  Plaintiff relies on Rule 126 to support their argument.  The Pennsylvania Supreme Court has found that “as a general proposition, Rule 126 is available in professional liability actions and may be applied to Pa.R.C.P. No. 1042.3, as long as its requirements … are met.  Womer v. Hilliker, 908 A.2d 269, 276 (Pa. 2006). The Court went further and stated that “the plaintiffs’ failure to take any steps to comply with the terms of Pa.R.C.P. No.3051 was not the sort of default that Pa.R.C.P. No. 126 was meant to cover.”  Id. at 277.  In Womer, no Certificate of Merit was filed, not even a defective one, and the Plaintiff took no steps to comply with Pa.R.C.P. No. 1042.3.   We find that in regards to Plaintiff’s claim for vicarious liability, Plaintiff took no steps to comply with Rule 1042.3 even though it is clear and unambiguous in its mandate that in every professional liability action a specific representation about the plaintiff’s claim must be filed in the Certificate of Merit at the time the complaint is filed or within sixty days thereafter.

This Court finds that Plaintiff failed to meet the requirements to get relief from a Judgment of Non Pros.  Based on the plain language of the statute, Plaintiff did not file the required Certificate of Merit in this case.  Plaintiff has not provided a reasonable explanation or legitimate excuse for their failure to file the required certificate of merit and therefore is not entitled to relief.  An Order will be entered consistent with the foregoing.