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A certificate of merit is required in malpractice lawsuits even when the alleged malpractice occurred prior to the effective date of the rule mandating the certificates, the Pennsylvania Superior Court has ruled. Since Jan. 27, 2003, the state Supreme Court has required plaintiffs in professional negligence cases to submit an affidavit verifying that an expert certified the case as meritorious. Plaintiff Lester Warren contended that the court’s requiring the affidavit in his medical malpractice case was unconstitutional, arguing it was a retroactive application of the rule. A three-judge panel of the Superior Court disagreed Friday, saying Warren “misconstrued” the concept of retroactivity as it applies to the court’s procedural rules. “The certificate of merit simply requires that the plaintiff begin to support his burden of proof at an earlier time in the proceedings than was previously required,” Senior Judge Phyllis W. Beck wrote. “By thus requiring an assertion early in the proceedings that the suit has arguable merit, Rule 1042.3 does not infringe upon any vested rights.” Beck noted that Rule 1042.3 of Civil Procedure does nothing to alter a plaintiff’s burden of proving his claim. Requiring a certificate of merit “does not infringe upon [Warren's] right to seek redress in the court for his injury,” Beck wrote. “The rule simply adds a procedural requirement … for going forward with the suit.” Judges Joseph A. Hudock and Mary Jane Bowes joined Beck’s opinion. Warren failed to submit a certificate of merit to the court. He originally filed Warren v. Folk in federal court in September 2003, about eight months after Rule 1042.3 announced the new requirement for plaintiffs. Warren’s suit alleged malpractice by a number of doctors, hospitals and health insurance companies, asserting that his wife developed cancer due to her silicone breast implants. According to the opinion, the cancer was misdiagnosed and she died in 2002. The federal court dismissed the suit for lack of jurisdiction in March 2004, and Warren transferred the case to state court. Without a certificate of merit for Warren’s case, the prothonotary of the Dauphin County Court of Common Pleas entered judgments of non pros in favor of the medical malpractice defendants in June 2004, according to the opinion. Warren filed a motion to strike the judgments non pros. When a Dauphin County judge denied the motion, Warren appealed. Neither Lester Warren nor his attorney of record, William Z. Warren of Bethel, Pa., could be reached for comment Monday. For Rule 1042.3 to be deemed a retroactive application to Warren’s lawsuit, as he alleged, the rule would have to “give the alleged incidents of malpractice a new legal effect — i.e., one that is different from their legal effect under the rules existing at the time the incidents occurred,” Beck explained. This wasn’t the case, she said. “The legal effect of the alleged incidents of malpractice has not been altered in any way by Rule 1042.3, and hence application of the rule to the appellant’s case does not constitute a retroactive application,” she wrote. Beck declined to adopt the reasoning of a federal court last year in Velazquez v. UPMC Bedford Memorial Hospital, which was cited by Warren’s attorney. The Velazquez court held a certificate of merit was not required in a med-mal case if the alleged malpractice occurred prior to Jan. 27, 2003, the effective date of Rule 1042.3. But Beck noted the Velazquez court later reversed its decision based on the order issued by the Supreme Court on Jan. 27, 2003, when the justices issued Rule 1042.3. That order stated in part: “The new and amended rules shall be applicable to actions commenced on or after the effective date of this order.” Beck observed, “This sentence leaves no doubt that the court intended for the certificate of merit requirement to apply to actions, such as the one at bar, filed on or after the effective date of Rule 1040.3.” Attorney Jim Horne represented Hershey Medical Center and Stephen Miller, two of the medical defendants in Warren. Horne, of McQuaide Blasko in State College, Pa., noted that plaintiffs “still have their right to bring their medical malpractice action. The certificate of merit just moves up the time you have to submit some sort of expert opinion.” Horne said the Superior Court’s opinion in Warren wasn’t surprising considering the court’s decision earlier this year in Bethea v. Philadelphia AFL-CIO Hospital Association, among other legal precedents. In Bethea, the plaintiff argued that applying requirements of the Medical Care Availability and Reduction of Error Act to her case would constitute a retroactive application because her lawsuit was filed before the statute’s effective date. However, the Bethea trial took place more than a year after MCARE’s effective date. At issue were the act’s requirements for medical expert witnesses. Similar to the result of Friday’s Warren decision, the Bethea panel concluded that the MCARE requirements didn’t affect the parties’ substantive rights but “only the procedural avenues by which a party may enforce its rights,” Beck noted in Warren. “The witness’s testimony might very well concern events antecedent to the enactment of the MCARE Act — but requiring specific, new qualifications on the part of the testifying witness did not give those antecedent events a different legal effect.” Counsel for other medical malpractice defendants in Warren did not immediately return calls seeking comment. Shaun Mumford of Margolis Edelstein in Camp Hill, Pa., represented Mark E. Folk, an osteopathic doctor in Schaefferstown, Pa. Stephanie Carfley of Barley Snyder in Lancaster represented the Schaefferstown Family Practice and Good Samaritan Hospital in Lebanon, Pa. Michael Mongiello of Camp Hill represented doctors Alice Roach and Marianne Webster.

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