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The Womer Decision: Outrageous!

Once in a great while you read a court opinion that strikes you as so unjust and unfair that it makes you want to scream. Such was the case with the Pennsylvania Supreme Court's decision in Womer v. Hilliker. Although it has been six months since the opinion was initially handed down, the result is no less troubling now than it was when originally rendered.

As most of you know, the situation in Womer was this. Plaintiff filed a malpractice claim against an ophthalmologist but failed to attach a certificate of merit as required by rule 1042.3. However, within the 60 days required for production of a certificate, the plaintiff sent the defendant his expert report. On day 61, the defendant requested, and obtained, a judgment of non pros against the plaintiff. The Superior Court opened the judgment on equitable grounds saying that the expert report constituted substantial compliance with the rule, but on grant of allocatur, the Supreme Court reversed and approved the trial court's dismissal of the case. According to the Court, strict compliance with §1042.3, or at least an attempt to comply, was required. No equitable relief could be granted here because the plaintiff had not sought an extension to file a certificate nor had he made any attempt to comply with the rule by filing a certificate, albeit even a defective one.

The result seems to be a classic example of form being elevated over substance. The whole purpose of the certificate of merit rule is to insure that plaintiffs are filing only those cases which have arguable merit, i.e., those for which a properly credentialed physician says there was a breach in the standard of care. That being so, it is hard to conceive how the Court could dismiss a case when the plaintiff provides the defendant with an actual expert report instead of a one sentence certificate. After all, isn't a report which is particularized to the facts of the case much more revealing than a boilerplate form? Certainly one would think that if you lined up 100 medical malpractice defense lawyers and asked them whether, within the first 60 days of the complaint being filed, they would rather have a generic certificate or a detailed expert report, they would universally select the latter.

Because Rule 1042.3 allows a defendant to obtain a default judgment without notice to the opposing party, the certificate of merit rule has already done much to create ill will among plaintiff and defense counsel. Therefore, it is ironic that our Supreme Court, which has done much to promote civility among lawyers, would craft a result which only intensifies the mistrust and hard feelings among opposing members of the bar.

Here is hoping that, in the future, the Court will take a more practical look at 1042.3 and attempt to eliminate some of the bitter outcomes caused by an overly strict application of the rule. One thing that would go a long way toward that end would be a court-created notice requirement before default could be entered. After all, notice is required before one can enter a default for lack of docket activity or for failure to respond to a complaint. There is no reason why a medical defendant should be accorded the special advantage of entering a default without need of sending a 10-day notice.

We await that day, but for now, we live with the harsh reality of rule 1042.3 as reinforced by Womer.

John Gismondi on G+

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