What Is Pennsylvania's Certificate of Merit Requirement in Medical Malpractice Cases?

Pennsylvania does not let a medical malpractice case get to a jury on the strength of a bad outcome and a strong feeling. Before the case goes anywhere, a qualified professional has to look at the records and put an opinion in writing.

That document is called a certificate of merit, and it is one of the most common reasons otherwise legitimate cases get dismissed.

What the rule actually requires

The requirement lives in Pa.R.C.P. 1042.3. In any case alleging that a licensed professional deviated from an acceptable professional standard, the certificate must be filed with the complaint or within sixty days after the complaint is filed.

The certificate itself is short. It states that one of three things is true.

The first and most common option is that an appropriate licensed professional has supplied a written statement finding a reasonable probability that the care in question fell outside acceptable professional standards, and that this conduct was a cause of the harm.

The second option applies when the claim against a defendant is based on responsibility for someone else's conduct rather than the defendant's own.

The third option is a certification that expert testimony is not necessary to prosecute the claim. That option carries a serious consequence. Under the rule, an attorney who certifies that no expert is needed is bound by that certification, and the trial court will generally preclude the plaintiff from presenting expert testimony on standard of care and causation later. It is not a shortcut.

The form of the certificate is set out in the rules, so there is no ambiguity about what has to be filed.

It is not only about doctors

The rule reaches any licensed professional accused of deviating from a professional standard. That includes physicians, but also nurses, dentists, chiropractors, and professionals well outside of medicine, such as attorneys, architects, and accountants.

The requirement also applies to claims based on lack of informed consent.

Who can sign the written statement

The professional who supplies the written statement does not have to be the same person who eventually testifies at trial. That person does have to be qualified, meaning an expert with sufficient education, training, knowledge, and experience that a trial court would allow them to testify.

In a case against a physician, the expert supplying the statement should meet the qualification standards set out in Section 512 of the MCARE Act. In practice this usually means finding a physician in the same or a substantially similar specialty who is willing to review records and put a professional opinion in writing.

That takes time, and it costs money before a case has produced anything.

What happens if it is missed

If no certificate is filed, the defense does not have to wait passively. A defendant can file a written notice of intention to enter a judgment of non pros, no sooner than the thirty-first day after the complaint was filed. If the certificate still does not appear within thirty days of that notice, judgment can be entered.

A judgment of non pros ends the case procedurally, without any consideration of whether the underlying claim had substance.

There is a relief valve. The court, upon good cause shown, shall extend the filing time for a period not to exceed sixty days, and a motion to extend must be filed by the thirtieth day after that notice of intention. Courts are directed to give appropriate consideration to the practicalities of securing expert review. That said, the extension is a motion to be filed and argued, not something that happens automatically.

Why this matters before anyone files anything

Here is the practical consequence, and it is the reason this rule belongs in a conversation about timing rather than a conversation about procedure.

A medical malpractice case cannot be assembled quickly. Records have to be requested from every provider involved, which frequently takes weeks. Those records have to be organized and sent to a qualified professional. That professional has to review them and reach a conclusion, and that conclusion is often that there is no deviation from the standard of care, which means the process starts again with a different set of questions or does not go forward at all.

Now put that against the two-year deadline in 42 Pa.C.S. § 5524. Someone who first contacts a lawyer twenty-two months after the events has left very little room for records retrieval and expert review before the complaint has to be filed.

This is also why a firm may decline to file a case it believes in. If the review does not support the certificate, the case cannot responsibly be filed. That is the system working the way it was designed to work, even when it is difficult to hear.

Our post on signs your injury might be medical malpractice covers what distinguishes a bad outcome from a deviation in the standard of care, and our post on how long you have to file a personal injury claim in Pennsylvania covers the deadlines in more detail.

Have the records reviewed sooner rather than later

If you have concerns about medical care you or a family member received in Ebensburg, Johnstown, Altoona, or elsewhere in Central Pennsylvania , the useful first step is a conversation about whether the records should be reviewed at all.

Sutton & Lovette offers a free consultation. Calls to (814) 471-7702 reach the firm's Ebensburg office directly rather than an answering service, and the firm returns calls promptly.