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Veteran litigators agree that a Philadelphia judge’s recent interpretation of procedure required in the filing of certificates of merit is consistent with the new set of rules governing medical malpractice complaints that took effect this year. Common Pleas Judge Mark I. Bernstein wrote an opinion in Frunzi v. Muller,stating that the identity and credentials of an expert who certifies the validity of a plaintiff’s cause of action may not be discovered until at least 30 days after the case was dismissed. Bernstein’s opinion explained why the new rules “clearly . . . preclude any interrogatories seeking the identity or the credentials of the licensed professional upon whose opinion the certificate of merit was based until the conclusion of the case.” Bernstein did note that normal rules governing expert testimony would apply if a plaintiff attorney later plans to call that witness at trial. The first reported case in Pennsylvania dealing with procedure for the now mandatory filing of such an affidavit in professional negligence cases, Bernstein’s opinion was followed two days later by a pair of opinions from Allegheny County Judge R. Stanton Wettick Jr. on separate issues regarding certificates of merit. Wettick said the rule is not “self-executing” and that a certificate of merit is not immediately required if a plaintiff does not raise a negligence action in the complaint. But the same plaintiff and defense lawyers who agreed with Bernstein’s interpretation of the procedure disagreed about whether cloaking a certifying expert’s identity should have been a provision of the rule in the first place. Under the new rules, which took effect Jan. 27, plaintiffs must submit a certificate of merit signed by their lawyer within 60 days of filing a complaint concerning professional liability. By signing the affidavit, the lawyer states that a licensed professional has reviewed the case and found that the defendant’s conduct fell outside the acceptable professional standards and caused the plaintiff harm. But “neither the rule nor the commentary note provide any support for pretrial discovery concerning the identity or curriculum vitae of the author,” Bernstein wrote. Attorneys for Jeanes Hospital and Temple University Health Systems Inc., two of the defendants in the case, wanted to know the credentials of the expert who certified the certificate of merit filed by the plaintiff, according to the opinion. “We believe we are entitled to background information on the expert who certified the case,” said Patrick Howard, an associate at Post & Schell who represented the hospital at the motion hearing. “We were asking for nothing to identify the person, but wanted to ensure that the person who issued the certificate is a qualified expert under the standards of the MCARE Act.” Specifically, attorneys were interested in whether the doctor was the right kind of expert, practicing under the same subspecialty as the defendant doctor in the case, Howard said. Counsel for the plaintiff objected, saying the request was inconsistent with the new rules. “Our concern was that the next week we’d be getting discovery requests looking for additional information with respect to that expert,” said Jason Daria, who is working on the case with Roberta Pichini at Litvin Blumberg Matusow & Young. The hospital’s attorneys argued that a note accompanying the new set of rules permits limited discovery while the case is pending. They said that the general rules governing expert testimony apply to experts’ written statements “until a defendant has been dismissed from the case,” according to the opinion. But the rules governing general expert testimony specifically limit discovery to “each person whom the other party expects to call as an expert witness at trial,” Bernstein said. The note the hospital’s attorneys were referring to “does not in any way expand the clear language of the rule itself prohibiting any discovery concerning the certificate of merit,” Bernstein wrote. “How else could you interpret the rule?” said Michael E. McGilvery, a defense attorney at Young & McGilvery. McGilvery agreed with Bernstein’s interpretation, but said he still favors full disclosure of an expert’s credentials. “What good is a certificate of merit if you can’t challenge it in court?” he said. Andrew Worek, of Weber Gallagher Simpson Stapleton Fires & Newby, also said he believes the letter underlying a certificate of merit should be discoverable. “It’s all part of a public disclosure system,” Worek said. “The plaintiff attorney’s got a letter? Fine, let’s see it.” That letter, with its author’s credentials exposed, would help defense attorneys like Worek identify the cases with greater merit earlier on, he said. “It would let me know that this plaintiff attorney has really researched this and someone out there with good credentials has looked at the case and said, ‘OK, there was a mistake here,’” Worek said. But plaintiff’s attorneys argue that doctors would be reluctant to review malpractice cases if confidentiality could not be promised. For Bernstein to have ruled differently would have had a chilling effect on professional negligence lawsuits, said Michael F. Barrett at Saltz Mongeluzzi Barrett & Bendesky. “There are physicians who, while they’re willing to review a case, are not willing to testify at trial,” said Barrett, a member of the board of directors of the Philadelphia Trial Lawyers Association. That unwillingness to testify stems from fear of retribution within the medical and insurance communities, Barrett said. In some cases, Barrett said, an expert is asked to sign an affidavit that implicates a physician defendant insured by the same carrier as the expert. “It’s such a political environment,” said another plaintiff’s attorney. In New Jersey, the letter underlying the certificate of merit is attached and the expert’s identity is known. In those cases, Rosemary Pinto said she looks for an out-of-state expert to avoid the physician having to implicate a peer within their immediate medical community. Pinto, who practices in both states for Feldman & Pinto, said it wouldn’t be fair to the expert under the Pennsylvania rules to subject him or her to intense cross-examination at such an early stage in the litigation. “It would be a waste of everybody’s time,” said Pinto. Nevertheless, Bernstein’s opinion was clear about the confidentiality of the consulting expert, said Gerald McHugh at Livin Blumberg. “And a lawyer who files a case and falsely certifies is taking a big risk,” he said. (Copies of the three-page opinion inFrunzi v. Muller , PICS NO. 03-1573, are available fromThe Legal Intelligencer . Please call the Pennsylvania Instant Case Serviceat 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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