Markey vs. Bajoghli, et al No. 2012-01751

Civil Action – Professional Malpractice – Certificate of Merit – Extension of Time – Practicalities of Securing Expert Review – Motion for Extension.

1. Pennsylvania Rule of Civil Procedures 1042.3 provides 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.
2. The certificate of merit shall state that an appropriate licensed professional has supplied a written statement 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, or that the claim that the defendant deviated 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.
3. The court, upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed sixty days.  A motion to extend the time for filing a certificate of merit must be filed by the thirtieth day after the filing of a notice of intention to enter judgment of non pros on a professional liability claim under Rule 1042.6(1) or on or before the expiration of the extended time where a court has granted a motion to extend the time to file a certificate of merit.
4. The filing of a motion to extend tolls the time period within which a certificate of merit must be filed until the court rules upon the motion.
5. In ruling upon a motion to extend time, the court shall give appropriate consideration to the practicalities of securing expert review.  If counsel for the Plaintiff was first contacted shortly before the Statute of Limitations was about to expire or, if despite diligent efforts by counsel, records necessary to review the validity of the claim were not available, there is a basis for a Court granting extension of time within which to file the certificate of merit.
6. The Court followed the language in the note to Rule 1042.3 and granted Plaintiff an extension of time since Plaintiff’s counsel was first contacted shortly before the Statute of Limitations was about to expire and because it considered the practicality of Plaintiff securing expert review.  Additionally, Plaintiff was in the process of securing new counsel in an effort to obtain a different opinion from a different expert because his original expert was unable to find the causation element of negligence.
7. Accordingly, the Motion for Extension to File Certificates of Merit was granted for a period of 60 days from the date of the Court’s Order.

Plaintiff’s Motion for Extension to File Certificate of Merit.  C.P. of Lebanon County, Civil Action-Law, No. 2012-01751.

April L. Strang-Kutay, Esquire, for Plaintiff

Gregory S. Nesbitt, Esquire, for Defendant Mehran Bajoghli, M.D.

Kevin E. Osborne, Esquire, for Defendant Good Samaritan Hospital

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY,

PENNSYLVANIA

 

CIVIL DIVISION

 

IAN MARKEY,                                   :

                                                             :

                             Plaintiff,                :

                                                             :

                   v.                                      :      No: 2012-01751

                                                             :

MEHRAN BAJOGHLI, M.D.            :

AND THE GOOD SAMARITAN       :

HOSPITAL,                                        :

                                                             :

                             Defendants.          :

 

APPEARANCES:

April L. Strang-Kutay, Esq. for the Plaintiff

Gregory S. Nesbitt, Esq. for the Defendant Mehran Bajoghli, M.D.

Kevin E. Osborne, Esq. for Defendant Good Samaritan Hospital

 

OPINION, KLINE, J., FEBRUARY 7, 2013

Before the Court is Plaintiff’s Motion for Extension to File Certificates of Merit.  For the reasons set forth herein, we grant the Motion, as specified below.

FACTS AND PROCEDURAL HISTORY

          On October 18, 2012, Plaintiff filed a Civil Complaint against Defendants.  The Complaint raises various allegations of professional negligence.  Plaintiff raises one count of negligence against Defendant Bajoghli, and one count of vicarious negligence against Defendant Good Samaritan Hospital.

Defendant Bajoghli filed his Answer with New Matter on November 19,

2012.  On November 20, 2012, Defendant Good Samaritan Hospital filed a

Notice of Intention to Enter Judgment of Non Pros for Plaintiff’s failure to file a certificate of merit as required by Pa.R.C.P. 1042.3.

On December 11, 2012, Plaintiff filed its Motion for Extension to File Certificates of Merit.  In the Motion, Plaintiff’s counsel avers that she has conferred with an expert who has determined that negligence occurred in the care that Plaintiff received from Defendant Bajoghli; however, the expert is unable to ascertain a causative link between Defendant Bajoghli’s conduct and Plaintiff’s injuries. (Plaintiff’s Motion, Paragraph 3).  In Plaintiff’s supporting brief filed January 7, 2013, Plaintiff’s counsel states Plaintiff sought legal representation within days of the expiration of the governing statute of limitations.  Therefore, the Complaint was filed to protect Plaintiff’s potential claim, even though a full expert analysis had not yet been obtained.  Plaintiff’s counsel states, “Due to the expert’s finding of no identifiable causation, the undersigned counsel cannot go forward in representation of Plaintiff, Ian Markey, and Plaintiff is currently in the process of seeking new counsel.”

On January 4, 2013, Defendant Good Samaritan Hospital filed its Answer to Plaintiff’s Motion, whereby it requests that Plaintiff’s Motion for an open-ended extension of time to file certificates of merit be denied.  Instead, a reasonable period of time to file should be imposed.  On January 17, 2013, Defendant Bajoghli filed its response and supporting brief.  Defendant Bajoghli also opposes the open-ended extension and requests a 45 day deadline for Plaintiff to file certificates of merit.

The case was listed for the January 2013 Term of Argument Court.  The parties waived oral argument and agreed to have the matter decided on the briefs.  The case is thus before us and ripe for disposition.

 

DISCUSSION

          Pennsylvania Rule of Civil Procedure 1042.3 provides as follows, in relevant part:

Rule 1042.3. Certificate of Merit

 

(a) 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 that either

 

(1) an appropriate licensed professional has supplied a written statement 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, or

 

(2) the claim that the defendant deviated 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…

 

Note: A certificate of merit, based on the statement of an appropriate licensed professional required by subdivision (a)(1), must be filed as to the other licensed professionals for whom the defendant is responsible. The statement is not required to identify the specific licensed professionals who deviated from an acceptable standard of care.

 

(b) (1) A separate certificate of merit shall be filed as to each licensed professional against whom a claim is asserted.

…

(d) The court, upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed sixty days. A motion to extend the time for filing a certificate of merit must be filed by the thirtieth day after the filing of a notice of intention to enter judgment of non pros on a professional liability claim under Rule 1042.6(a) or on or before the expiration of the extended time where a court has granted a motion to extend the time to file a certificate of merit, whichever is greater. The filing of a motion to extend tolls the time period within which a certificate of merit must be filed until the court rules upon the motion.

 

Note: In ruling upon a motion to extend time, the court shall give appropriate consideration to the practicalities of securing expert review. There is a basis for granting an extension of time within which to file the certificate of merit if counsel for the plaintiff was first contacted shortly before the statute of limitations was about to expire, or if, despite diligent efforts by counsel, records necessary to review the validity of the claim are not available.

 

Pa.R.C.P. 1042.3.

Plaintiff’s counsel indicates that the Complaint was filed in response to a statutory deadline, and it had to be filed in order to protect Plaintiff’s potential claim.  Plaintiff’s counsel asserts that Plaintiff sought representation within days of the expiration of the governing statute of limitation; therefore, it was impossible to institute a formal review prior to the expiration of the statute.

Plaintiff’s counsel further states that she did confer with an expert, but the expert is unable to ascertain a causative link between Defendants’ alleged negligence and Plaintiff’s alleged injuries.  Further, since her expert is unable to identify a causative link, she cannot continue to represent Plaintiff, and Plaintiff is currently seeking new counsel.

In Warner v. University of Pennsylvania Health System, 874 A.2d 644 (Pa. Super. 2005), a patient who brought a medical malpractice action against a health organization was not entitled to an extension of time to file a certificate of merit.  The patient failed to allege the existence of a valid excuse

for failing to file within 60 days of filing the complaint.

In Hoover v. Davila, 862 A.2d 591 (Pa. Super. 2004), a patient was not entitled to an extension of time to file a certificate of merit regarding one doctor in a medical malpractice action.  The patient had originally proceeded pro se, and the 60 day period for requesting extension had already passed. The rule setting forth the 60 day period clearly applied to both plaintiff’s attorneys and unrepresented plaintiffs.

In Parkway Corp. v. Edelstein, 861 A.2d 264, (Pa. Super. 2004),

reargument denied, appeal denied 912 A.2d 1293 (Pa. 2006), the Superior Court ruled that clients’ ignorance of the obligation to file a certificate of merit within 60 days after filing their legal malpractice complaint was not a reasonable explanation or legitimate excuse warranting relief from judgment of non pros obtained by the defendant’s attorneys.

The aforementioned cases are not analagous to the instant case.  Rather, Plaintiff’s counsel has acted in a diligent manner in her client’s best interests in an effort to preserve his potential claims.  The Court is inclined to follow the language in the note to Rule 1042.3.  There is a basis to grant an extension if plaintiff’s counsel was first contacted shortly before the statute of limitations was about to expire.  Further, this Court should consider the practicalities of securing expert review.  Plaintiff’s counsel’s expert was unable to find the causation element of negligence.  Therefore, it appears that Plaintiff is seeking new counsel in an effort to obtain a different opinion from a different expert.

Accordingly, the Motion for Extension to File Certificates of Merit is granted.  The Court will grant a sixty (60) day extension to file the Certificates of Merit.  We will enter an Order consistent with the foregoing.