In Pennsylvania, in order to begin a successful medical malpractice claim, the court requires that a ‘certificate of merit’ be filed. A certificate of merit is a document from a medical professional which states that the medical care received by the plaintiff was unacceptable. This means that you are not allowed to continue your case in Pennsylvania unless you have a letter written from a medical professional saying that, as an expert, he or she believes that the care from the defendant doctor (or other medical professional named in the law suit) fell the below acceptable standard of care.
This rule requires that when your lawyer files your medical malpractice claim, he must also file a certificate of merit within 60 days. If the deadline is missed, your case will be dismissed. You may refile your case; however, you can only refile if your case is filed within the two year statute of limitations. It is important to know that it is extremely unlikely that a lawyer will even commence a medical malpractice lawsuit without an expert opinion stating that the defendant doctor or hospital provided medical care that fell below the acceptable standard of care. Why? Because such a law suit will be thrown out, thus the requirement of the certification of merit.
Obtaining a certificate of merit is the first step in proving a medical malpractice case. Discovery, which includes interrogatories, document requests and depositions, is prohibited until the certificate of merit is filed. The court, however, will allow any discovery which is required for an expert to make a determination as to whether a defendant medical provider deviated from accepted professional standards. The content of the rule is as follows:
Except for the production of documents and things or the entry upon property for inspection and other purposes, a plaintiff who has asserted a professional liability claim may not, without leave of court, seek any discovery with respect to that claim prior to the filing of a certificate of merit. Pa. R.C.P. 1042.5.
The aim of this rule is to “weed out” medical malpractice claims that would otherwise be difficult to win before they get into court. This rule essentially forces plaintiffs to get permission to sue from a licensed medical expert.
Stuart A. Carpey, who has been practicing as an attorney since 1987, focuses his practice on complex civil litigation which includes representing injured individuals in a vast array of personal injury cases.