How the Pennsylvania Certificate of Merit Impacts Malpractice Lawsuits
According to recent court records, injured patients in Pennsylvania filed almost 1,500 medical malpractice cases in 2023. While data suggests that malpractice cases are technically declining statewide, we still encounter hundreds of malpractice victims each and every year as part of our local law practice.
In these cases, knowledge is power – the more you can learn about the process and its quirks, the more likely you are to secure a favorable case outcome. One such quirk is Pennsylvania’s certificate of merit requirement. Here’s a brief explanation of what this requirement entails and how a certificate of merit could make or break your Pennsylvania medical malpractice claim.
What is a certificate of merit?
In order to file a medical malpractice claim in many states (including Pennsylvania), a COM must be filed with the complaint or within 60 days after the complaint is filed. By requiring a certificate of merit, courts can essentially “weed out” claims that lack any medical credibility and protect the rights of those whose claims’ have a legitimate medical basis.
Not all states require a certificate of merit as part of the medical malpractice claim process, but this has been the legal standard in our state since 2003. Pennsylvania Rule 1042.3 requires a Certificate of Merit stating:
(1) an appropriate licensed professional has supplied a written statement supporting the claim,
(2) the claim is based on vicarious liability for other professionals, or
(3) expert testimony is unnecessary.
Securing a certificate of merit is often the first major step in filing a malpractice suit, and failing to secure a COM could essentially derail your claim before it even begins. An experienced medical malpractice lawyer can play a crucial role in helping a survivor of medical malpractice obtain the COM they need to move forward with their case while complying with all requisite legal standards.
Who has to file a certificate of merit?
In Pennsylvania, anyone hoping to bring a claim of medical malpractice against a medical provider must file a certificate of merit before they can move forward with their suit. Medical malpractice cases typically involve claims by patients against medical professionals like doctors and nurses, but they can also extend to hospitals or other medical facilities as a whole.
Regardless of whether you’re suing an individual provider or an entire organization, you’ll still need to file a COM that supports your version of events and highlights how your provider(s) deviated from accepted standards of care. Medical malpractice cases can be highly complex due to the advanced concepts and decision-making models involved.
Yes, securing a COM is a critical legal requirement, but it can also add crucial veracity to your medical malpractice claim and help clarify some of the more complicated issues at play in your case. Providing a COM is, therefore, a sort of win-win situation – it ensures you get your day in court and it provides a clear explanation of all ways in which the healthcare system failed you.
How long do I have to file a COM?
Under Pennsylvania law, plaintiffs must file a COM within 60 days of filing a malpractice complaint. A separate COM is required as to each licensed professional defendant, and the COM must clearly identify the defendant(s) and the basis for the certification. If you fail to provide your certificate (or certificates) within the 60-day window, your case may be thrown out. You may still have the option to re-file down the line once you’ve secured a COM, but any delays in your case can be costly in the long run.
Who can I use as a medical expert for a COM?
Pennsylvania has strict rules about who can provide a certificate of merit in a medical malpractice case. After all, the whole purpose of a COM is to provide an expert opinion about what errors most likely caused the harm suffered by the plaintiff. Not just anyone qualifies as an “expert,” which is why state law states that experts must possess “sufficient education, training, knowledge and experience to provide credible, competent testimony.”
State law also takes these requirements one step further in cases involving medical liability against physicians by requiring experts to meet the qualification criteria laid out in the state’s Medical Care Availability and Reduction of Error (MCARE) Act, 40 P. S. § 1303.512. This statute requires that anyone called upon to offer an expert medical opinion regarding a physician’s standard of care must:
- Possess an unrestricted physician’s license
- Be actively working or retired for less than 5 years
- Be substantially familiar with accepted standards of care
- Practice in the same (or similar) subspecialty as the defendant
- Be board-certified in the event that the defendant is board-certified
The law offers a few possible exceptions and amendments to these requirements, but these are applied on a case-by-case basis. Rather than taking chances, it’s always best to find an expert who meets the criteria laid out above who is willing to certify your case. If you submit a COM and the court determines the expert you called upon wasn’t sufficiently called upon, they might wind up dismissing your case.
At that point, you’d need to go back to the drawing board, find a new (qualified) expert and start the whole filing process over again. Instead of rolling the dice, you should seriously consider consulting with an experienced medical malpractice lawyer who understands expert qualifications for COMs and can help you identify and contact an appropriate licensed professional to certify your case.
Is a certificate of merit proof of malpractice?
Not exactly. A certificate of merit can certainly support your malpractice claim, but by no means does it prove malpractice in and of itself. Certificates of merit are important stepping stones to building a case, and they can provide the court with a straightforward overview of your basic argument and its merits. However, the other side will still need to present their case and fill in any potential gaps before the court can render any kind of decision.
Keep in mind that many malpractice cases ultimately settle out of court, but the cases that do go to trial tend to be quite complex. After you’ve secured your COM and the court has agreed to take up your case, you and your lawyer will need to proceed through multiple phases of litigation in order to fight for the compensation you’re seeking. None of these phases can even begin, though, until you’ve provided a satisfactory certificate of merit to the court, so you’ll want to get off to a strong start by providing a comprehensive, convincing and compliant COM within the 60 day window set by law.
Final thoughts
Filing a Certificate of Merit is a non-negotiable first step in Pennsylvania medical malpractice cases. Without one, the courts may dismiss even seemingly airtight malpractice claims against negligent medical providers. If you’re hoping to tell your own story and fight for your rights, you’ll first need to tackle the COM process.
At Carmody and Ging, Injury & Accident Lawyers, we understand just how crucial it is for survivors of medical malpractice to have their day in court. We are extremely familiar with the COM process and have ample experience helping plaintiffs in malpractice claims secure the expert input they need to build strong cases right out of the gate.
Pennsylvania generally applies a two-year statute of limitations to injury claims, so it’s important to speak with a lawyer promptly about how deadlines apply to your situation. Give us a call today or fill out our online contact form to schedule a free consultation with a member of our team, and let’s discuss how our local medical malpractice team might be able to support you in your fight for justice.