PHILADELPHIA – A Philadelphia court dismissed a count of corporate negligence against Bryn Mawr Rehabilitation Hospital in a medical malpractice action, citing insufficiently-filed Certificates of Merit (COMs).
Judge Gerald J. Pappert said Oct. 26 the corporate negligence claim in Marie Bassill’s litigation was dismissed with prejudice, due to the same inadequate COMs.
“This cases arises out of plaintiff Marie Bassill’s allegation that ‘a physical therapist by the name of Kerry negligently and violently manipulated plaintiff’s head and neck’ during a vestibular re-evaluation at Bryn Mawr Rehabilitation Hospital,” Pappert said. “On April 15, Bassill sued defendants Bryn Mawr Rehabilitation Hospital, Main Line Health System, and Main Line HealthCare (collectively, “defendants”).”
In Count I of the complaint, Bassill alleged vicarious liability for the alleged professional negligence of their alleged employee and in Count II, Bassill seeks to hold defendants directly liable for their own corporate negligence. On Sept. 12, defendants filed a motion to dismiss plaintiff’s corporate negligence claim for failure to file COMs, arguing those filed by Bassill are “insufficient to support that claim.”
Pappert said Pennsylvania Rules of Civil Procedure require all professional liability claims be supported by a COM filed within 60 days of the filing of the complaint.
“The rule states that in any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, a plaintiff must file a COM signed by the attorney or party certifying that: “(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 the acceptable professional standards and that such conduct was a cause in bringing about the harm; (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 (3) Expert testimony of an appropriate licensed professional is unnecessary for the prosecution of the claim. The Third Circuit has held that the Pennsylvania Rules of Civil Procedure regarding COMs are substantive law and therefore must be applied by federal courts sitting in diversity.”
Bassill submitted two COMs in support of her claim, but the defense argued they were only sufficient enough to substantiate a potential claim for vicarious liability, but not corporate negligence.
“The doctrine of corporate negligence was first recognized by the Pennsylvania Supreme Court in Thompson v. Nason Hosp., which held that hospitals directly owe four duties to patients: (1) A duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) A duty to select and retain only competent physicians; (3) A duty to oversee all persons who practice medicine within its walls as to patient care; and (4) A duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients,” Pappert said.
Pappert explained corporate negligence claims generally require expert testimony; therefore, they also require COMs.
“As set forth by the Pennsylvania Supreme Court in Welsh, ‘Unless a hospital’s negligence is obvious, a plaintiff must produce expert testimony to establish that the hospital deviated from an accepted standard of care and that the deviation was a substantial factor in causing the harm to the plaintiff,” Pappert said.
Pappert continued that in Count II of her complaint, Bassill initiates a corporate negligence claim “seeking to hold defendants directly liable for their own negligence”, and that the case law makes it clear that in order to do so, “Bassill would need to present expert evidence (supporting COMs) regarding the defendant hospitals’ negligence, as separate from the alleged negligence of its employee and/or agent.”
“The only COMs filed by Bassill, however, both certify that ‘the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other 5 licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard,” Pappert said.
“In this context, these COMs would only support a finding that defendants were vicariously liable – not a claim that defendants were directly liable for corporate negligence because their own actions fell below the requisite standard of care. Because Bassill failed to file a COM in support of her corporate negligence claim, the claim is dismissed in accordance with Rule 1042.7,” Pappert added.
Pappert explained the defendants believed the lack of filing within the established deadline should lead to outright dismissal of the corporate negligence claim.
“The defendants further argue that due to her failure to file the requisite COM within the deadline, Bassill’s corporate negligence claim should be dismissed with prejudice. Defendants contend that their Notice of Intent to Seek Dismissal for Failure to File Certificates of Merit pursuant to Rules 1042.6 and 1042.7 clearly indicated that defendants would seek dismissal of ‘all claims’ against them,” Pappert said.
According to Pappert, the defendants point out their counsel notified Bassill’s counsel in an e-mail on July 6 that the COMs were insufficient to support a direct claim of corporate negligence. Bassill’s counsel responded to the email taking the position that COMs are not required for a corporate negligence claim.
“In limited circumstances, a plaintiff’s failure to file a timely certificate of merit may be excused. No such equitable exception applies here. The Court already granted Bassill considerable additional time past the Rule’s original 60-day deadline,” Pappert stated.
In addition, defense counsel identified this same issue in the July 6 e-mail providing Bassill more than enough time Moreover, counsel for the defendants flagged this precise issue for Bassill’s counsel in the July 6 email, giving Bassill adequate time to examine the issue more 6 closely, request clarification from the Court1 and/or acquire the requisite COM.
“Instead, Bassill’s counsel responded to the email taking the position that COMs are not required for a corporate negligence claim and then allowed the September 6 deadline to pass without taking further action. Count II of Bassill’s complaint is accordingly dismissed with prejudice,” Pappert said.
The plaintiff is represented by Leonard P. Haberman of Clearfield & Kofsky, in Philadelphia.
The defendants are represented by Heather E. Hansen and Jeffrey Brien of O’Brien & Ryan, in Plymouth Meeting.
U.S. District Court for the Eastern District of Pennsylvania case 2:16-cv-01575
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at firstname.lastname@example.org