Wemmer et al v. Robert Packer Hospital et al

Filing 21

MEMORANDUM ORDER granting in part and denying in part 15 Motion to Dismiss. Plaintiffs will have 21 days to file a certificate of merit with respect to defendant Robert Packer Hospital. Signed by Honorable A. Richard Caputo on 6/1/11 (jam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
A.W., a minor, by JENNIFER HANNULA,
her mother; JENNIFER HANNULA,
individually; and by ADAM WEMMER, her
father; ADAM WEMMER, individually,

CIVIL ACTION NO. 3:10-CV-2261

(JUDGE CAPUTO)

Plaintiffs,
v.
ROBERT PACKER HOSPITAL;
ALEXANDER J. PINSKY, M.D.; and
KAREN EPHLIN, M.D.
Defendants.

MEMORANDUM ORDER
Presently before the Court is defendants’ motion to dismiss. (Doc. 15.) For the
reasons stated below, the motion will be granted in part and denied in part.
The instant suit centers on Plaintiffs’ allegations that defendants failed to properly
diagnose minor A.W. with microcephaly at birth and refer her to a specialist for early
intervention.

Plaintiffs have brought claims of medical malpractice, negligence, and

corporate negligence against the supervising doctors and the hospital. In their initial brief
in support of the motion to dismiss, defendants argued that plaintiffs had failed to provide
certificates of merit along with their complaint, as required by the Pennsylvania Rules of
Civil Procedure. In response, plaintiffs filed certificates of merit with respect to Drs. Pinsky
and Ephlin. In their reply brief, defendants argue that plaintiffs have still not supplied a
certificate of merit with respect to Robert Packer Hospital and that a separate certificate is
required for the hospital. Defendants further argue that plaintiffs’ complaint should either

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be dismissed or plaintiffs should be ordered to file the separate certificate of merit. The
Court agrees with defendants in part, and will order plaintiffs to file a separate certificate of
merit with respect to Robert Packer Hospital within twenty-one (21) days.
A federal court sitting in diversity must apply state substantive law and federal
procedural law. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Eerie
R.R. v. Tompkins, 304 U.S. 64, 78 (1938)). Further, certificate of merit statutes are
substantive state laws that must be applied by federal courts sitting in diversity.
Chamberlain, 210 F.3d at 161.
Under Pennsylvania law, a party filing an “action based upon an allegation that a
licensed professional deviated from an acceptable standard,” Pa. R. Civ. P. 1042.3(a), must
file a certificate of merit signed by the party or the party's attorney within sixty (60) days of
the filing of the complaint. A “licensed professional” includes any person licensed as a
health care provider as defined by Section 503 of the Medical Care Availability and
Reduction of Error (“MCARE”) Act, 40 P.S. § 1303.503. Pa. R. Civ. P. 1042.1(b)(1)(I).
Under the MCARE Act, hospitals are health care providers. See, e.g., Smith v. Friends
Hosp., 928 A.2d 1072, 1075 (Pa. Super. 2007). The certificate of merit must demonstrate
one of the following: (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 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
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(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution
of the claim. Id. Furthermore, Pa. R. Civ. P. 1042.3(b)(1) provides: “A separate certificate
of merit shall be filed as to each licensed professional against whom a claim is asserted.”
(emphasis added.)
Regarding corporate negligence, this theory was first recognized by the Pennsylvania
Supreme Court in Thompson v. Nason Hospital, 527 Pa. 330 (1991). There, it was found
that a hospital owes some non-delegable duties directly to its patients, without requiring an
injured party to establish the negligence of a third party. Id. at 338. Under this doctrine, a
hospital is liable if it fails to uphold the proper standard of care owed to its patient. The
plaintiff must show that the hospital had actual or constructive knowledge of the defect or
procedures which created the harm and that the hospital's negligence was a substantial
factor in bringing about the harm. Id. at 339.
Here, plaintiffs’ have brought claims against Robert Packer Hospital for negligence
on a theory of respondeat superior as well as corporate negligence. Because plaintiffs have
asserted claims against Robert Packer Hospital for breaching the applicable standards of
care, and the hospital is a “licensed professional,” plaintiffs must submit a separate
certificate of merit with respect to this defendant.

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NOW, this

1st

day of June, 2011, IT IS HEREBY ORDERED that defendants’

motion to dismiss is GRANTED in part and DENIED in part. Plaintiffs’ will have twenty-one
(21) days to file a certificate of merit with respect to defendant Robert Packer Hospital.

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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