One of the hottest areas in the law concerns Pennsylvania Rule of Civil Procedure 1042.1 through 1042.8 – Certificates of Merit in Professional Liability Actions. There can be dire consequences for any party who does not fully understand the rule and its application to a particular case.

In a nut shell, Rule 1042 requires that a case against a “licensed professional” requires a written statement from a similarly licensed professional that the "care, skill or knowledge" of the defendant licensed professional "fell outside acceptable standards" and that the conduct was a cause in "bringing about the harm" that is the subject of the lawsuit. The Certificate of Merit, which need not be the actual expert report, but merely a representation that such an opinion has been obtained, must be filed within sixty days of the filing of the Complaint. Upon Praecipe, and without prior notice, failure to comply will result in a dismissal.

The rules define a “licensed professional” as any licensed health care provider as defined by MCARE, an accountant, an architect, a chiropractor, a dentist, an engineer, a surveyor, a nurse, an optometrist, a pharmacist, a physical therapist, a psychologist, a veterinarian, and an attorney. It makes no difference if the defendant is licensed in Pennsylvania or another state.

The above sounds simple enough; however, the rule has led to a number of cases over the past few years where the appellate courts have explored the following questions:

• What is professional liability action and do such claims need to be expressly categorized as such?
• Must Preliminary Objections be filed to obtain a ruling on whether claims sound in professional liability?
• Do claims against a practice of licensed professionals also require a Certificate of Merit?
• Can the same Certificate of Merit apply to multiple defendants?
• Must a defendant file a Certificate of Merit to pursue professional liability claims against co-defendants and/or additional defendants?
• Do claims against nursing homes, pharmacies, and other related entities qualify require a Certificate of Merit?
• Is a dismissal for failure to comply with or without prejudice?
• Will substantial compliance satisfy Rule 1042?
• Courts have not considered ignorance of the rule or substantial compliance as an excuse from compliance. It is easy to see how attorneys (both plaintiffs and defendants), especially those less familiar with these rules, have misapplied the Certificate of Merit rules. 

What It Means to You

A working knowledge of the current state of the law on Rule 1042 is imperative. Plaintiff’s counsel must identify the application of Rule 1042 and fully comply in a timely manner. Defense counsel must be in a position to take advantage of this rule, designed to weed out meritless cases against professionals, but more importantly, must properly invoke the Rule, else risk waiving its application. If you have questions, feel free to contact Attorney Jake Polochak (jpolochak@c-wlaw.com 412-563-2500) or any of our offices for further information.