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PA Bulletin, Doc. No. 16-628

THE COURTS

Title 231—RULES OF
CIVIL PROCEDURE

PART I. GENERAL

[ 231 PA. CODE CH. 1000 ]

Order Amending Rule 1042.3 of the Rules of Civil Procedure; No. 636 Civil Procedural Rules Doc.

[46 Pa.B. 1895]
[Saturday, April 16, 2016]

Order

Per Curiam

 And Now, this 30th day of March, 2016, upon the recommendation of the Civil Procedural Rules Committee; the proposal having been submitted without publication pursuant to Pa.R.J.A. No. 103(b):

 It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule 1042.3 of the Pennsylvania Rules of Civil Procedure is amended in the following form.

 This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective immediately.

Annex A

TITLE 231. RULES OF CIVIL PROCEDURE

PART I. GENERAL

CHAPTER 1000. ACTIONS

Subchapter B. ACTION IN TRESPASS

PROFESSIONAL LIABILITY ACTIONS

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

 Official Note: The requirements of subdivision (a) apply to a claim for lack of informed consent.

 (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

 Official Note: It is not required that the ''appropriate licensed professional'' who supplies the necessary statement in support of a certificate of merit required by subdivision (a)(1) be the same person who will actually testify at trial. It is required, however, that the ''appropriate licensed professional'' who supplies such a statement be an expert with sufficient education, training, knowledge and experience to provide credible, competent testimony, or stated another way, the expert who supplies the statement must have qualifications such that the trial court would find them sufficient to allow that expert to testify at trial. For example, in a medical professional liability action against a physician, the expert who pro-vides the statement in support of a certificate of merit should meet the qualifications set forth in Section 512 of the Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. § 1303.512.

 (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, or

 Official 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. The purpose of this subdivision is to ensure that a claim of vicarious liability made against a defendant is supported by a certificate of merit. Separate certificates of merit as to each licensed professional for whom a defendant is alleged to be responsible are not required. Only a single certificate of merit as to a claim under subdivision (a)(2) is required.

 (3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.

 Official Note: In the event that the attorney certifies under subdivision (a)(3) that an expert is unnecessary for prosecution of the claim, in the absence of exceptional circumstances the attorney is bound by the certification and, subsequently, the trial court shall preclude the plaintiff from presenting testimony by an expert on the questions of standard of care and causation.

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

 Official Note: This subdivision relates to licensed professionals named as defendants. It should not be interpreted to require certificates of merit under subdivision (a)(2) or otherwise as to non-defendant licensed professionals.

 (2) If a complaint raises claims under both subdivisions (a)(1) and (a)(2) against the same defendant, the attorney for the plaintiff, or the plaintiff if not represented, shall file

 (i) a separate certificate of merit as to each claim raised, or

 (ii) a single certificate of merit stating that claims are raised under both subdivisions (a)(1) and (a)(2).

 (c)(1) A defendant who files a counterclaim asserting a claim for professional [responsibility] liability shall file a certificate of merit as required by this rule.

*  *  *  *  *

[Pa.B. Doc. No. 16-628. Filed for public inspection April 15, 2016, 9:00 a.m.]


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