Defense Digest

Medical Malpractice Plaintiff's Motion For Relief From Judgment Of Non Pros Lacks Merit

The epidemic of medical malpractice claims brought in Pennsylvania over the past twenty years has been well publicized. In an effort to discourage frivolous medical malpractice claims, on January 27, 2003, the Pennsylvania Supreme Court adopted a series of rules that must be followed by a plaintiff asserting claims against not only health care providers, but other professionals, including accountants, architects, engineers, veterinarians, and attorneys. Pa. R. C. P. 1042.1 – 1042.8. Perhaps the most significant of these requirements is Rule 1042.3, which requires, inter alia, a plaintiff to file a certificate of merit within 60 days of the filing of his original complaint. The certificate must assert that "an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that 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 plaintiff is permitted to seek an extension of the time period within which to file a certificate of merit if the request for an extension is filed within the original 60-day period and good cause is shown. Pa. R. C. P. 1042.3(d). If a plaintiff fails to file a certificate of merit or to timely seek an extension, the court, upon request by the defendant against whom such claims were brought, is required to enter a judgment of non pros against the plaintiff, effectively dismissing the plaintiff's claims against that professional. Pa. R. C. P. 1042.6. If the relevant statute of limitations has run prior to the dismissal of the action, the plaintiff is left without recourse against the professional unless he is able to persuade the court to open the judgment of non-pros. Pennsylvania courts were left with the difficult task of determining whether Pa. R. C. P. 1042.3 is subject to equitable exceptions, which would allow for the opening of a judgment of non pros entered as a result of a plaintiff's failure to comply with the rule's requirements. The recently decided case of Womer v. Hilliker, 908 A.2d 269 (Pa. 2006), focuses on this issue and determined that Rule 1042.3 is subject to equitable exceptions, however, only under limited circumstances.

In Womer, the plaintiff, Garth Womer, commenced a civil action against his ophthalmologist, Jan Hilliker, M.D. Womer alleged that Hilliker was negligent and failed to give informed consent related to a corrective surgical procedure Hilliker performed on Womer's eyes, which is alleged to have resulted in permanent visual limitations. Womer, however, did not file a certificate of merit within 60 days of filing his complaint, nor did he seek to extend the time for the filing of the certificate as is required in Rule 1042.3. A few days after the deadline for filing the certificate, the court, upon Hilliker's request, entered a judgment of non pros, dismissing Womer's complaint.

Womer moved to have the trial court open the judgment. Womer contended that he served an expert report on Hilliker in discovery prior to the expiration of the time limit imposed by Rule 1042.3 and that the report included all of the information that would have been included in a certificate of merit. Womer asserted that relief from the judgment on non pros was proper under Pa. R. C. P. 3051(b)(2), which provides that a petition for relief from a judgment of non pros must include a "reasonable explanation or legitimate excuse for the inactivity or delay." Womer contend that he had a reasonable excuse for not filing a certificate of merit in that he believed he had met the requirements of Rule 1042.3 by providing Hilliker with a copy of his expert's report. Womer further argued that equitable principles of Rule 126, which provides that the court "may disregard any error or defect of procedure which does not affect the substantial rights of the parties," should afford him relief from the judgment of non pros. Pa. R. C. P. 126.

The trial court denied Womer's motion on the basis that his belief that he satisfied the requirements of Rule 1042.3 was insufficient to satisfy the reasonableness requirement of Rule 3051(b)(2). The trial court further determined that Rule 126 could not excuse Womer's procedural failures as such an application of the Rule would effectively nullify the terms of Rule 1042.3.

Womer appealed to the Superior Court, which disagreed with the trial court's finding that Womer's belief that he had met the requirements of 1042.3 was not reasonable. The Superior Court also opined that the equitable principles of Rule 126, the relevant statute of limitations, the lack of case law concerning Rule 1042.3, and Womer's substantial compliance with the Rule should have been considered in determining whether the judgment of non pros should have been opened. The Superior Court reversed the trial court's order and remanded the matter back to the trial court.

Hilliker appealed to Pennsylvania's Supreme Court, which, in a majority opinion, reversed the Superior Court and remanded the matter to the trial court with instructions to reinstate the order denying Womer's Motion to Open the Judgment of Non Pros. The Supreme Court focused on whether Rule 1042.3 is subject to equitable exceptions of Rule 126. In sum, the Supreme Court recognized that in the interest of equity, a court may afford a party relief from strict compliance with the Pennsylvania Rule of Civil Procedure; however, such relief was to be granted only in cases where the offending party substantially complied with the rule at issue. In the Supreme Court's view, Womer's failure to file a certificate of merit was more egregious than a procedural misstep since he took no steps to comply with Rule 1042.3 at all.

The Supreme Court also addressed the issue of whether Rule 3051 should afford Womer relief on the basis that Womer's belief that he had met the requirements of Rule 1042.3 was reasonable and, thus, grounds for opening the judgment of non pros. The Supreme Court held that Rule 3051 is applicable to cases dismissed under Rule 1042.6; however, whether relief is appropriate is at the discretion of the trial court, and the trial court's decision can only be overturned if it reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous, citing Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1046 (Pa. 2003). The Supreme Court held that the trial court acted well within its discretion in finding that Womer did not provide a reasonable excuse under Pa. R. C. P. 3051 for failing to file a certificate of merit.

Whether the Pennsylvania Supreme Court's decision in Womer will serve to resolve or merely complicate issues with respect to adherence to the requirements of Rule 1042.3 remains to be seen as courts will still be left to determine whether a plaintiff "substantially" complied with the rule. Nonetheless, Pennsylvania courts are likely to see a stricter compliance with Rule 1042.3 as attorneys become more familiar with Rule 1042.3, which is essentially still in its infancy.

* Aaron, an associate, works in the firm's Philadelphia, Pennsylvania, office. He can be reached at (215) 575-2899 or aemoore@mdwcg.com.