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Case Law Alerts

Is a certificate of merit required when a plaintiff files a claim sounding in professional negligence but subsequently attempts to assert that the issue involves simple negligence?

Leisure v. Primecare, Inc., 2022 WL 2952335, Jul. 26, 2022

October 1, 2022

by Gabor Ovari

This case involves the issue of whether a certificate of merit is required when a plaintiff files a claim sounding in professional negligence but subsequently attempts to assert that the issue involves simple negligence.

The plaintiff was a prison inmate who underwent an ear cleaning procedure. He alleged that the defendants, two nurses, deviated from the standard of care when they performed an earwax cleaning procedure and a nurse used a syringe to insert scalding hot water into his ear. Following the initial complaint, the plaintiff filed an amended complaint sounding in negligence. The defendants filed a notice of enter judgment of non pros for failure to file a certificate of merit, after which the prothonotary entered a judgment of non pros. The plaintiff moved to strike the judgment, which was denied by the court. On appeal, the plaintiff argued that a certificate of merit was not necessary because the amended complaint involved a claim for simple negligence that was filed to replace the previous complaint of professional liability.

However, the Superior Court of Pennsylvania agreed with the trial court, which stated that where a complaint is predicated upon facts constituting medical treatment, the action must be characterized as professional negligence. The amended complaint in this case raised a cause of action for negligence, which was premised upon an alleged failure of the nursing staff to properly remove a buildup of earwax. Therefore, the plaintiff’s negligence claim in the amended complaint was a claim for professional liability and a certificate of merit was required.

 

Case Law Alerts, 4th Quarter, October 2022 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2022 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.

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