O'Brien and Ryan, LLP - Attorneys at Law
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Favorable Ruling for Nursing Home from Superior Court of Pennsylvania

Paul Peel received a favorable ruling for a nursing home from the Superior Court of Pennsylvania.  In Wister v. Liberty Nursing & Rehabilitation Ctr., 200 EDA 2005 (Pa. Super. October 17, 2005), the Superior Court of Pennsylvania reversed a trial court's decision and dismissed plaintiff's action for failure to timely file a Certificate of Merit as required by Pa.R.C.P. 1042.3. In the underlying action, plaintiff alleged that a nursing home failed to properly transfer her to another nursing home. As result of this improper transfer, the plaintiff did not receive certain medications which caused her serious and permanent injuries.

After plaintiff failed to timely file a Certificate of Merit, both nursing homes filed a Praecipe for Entry of Judgment of Non Pros which was granted by the trial court. Plaintiff then filed a Motion to Open the Judgments arguing that she did not assert a professional liability claim, as the defendants were not medical professionals and Certificates of Merit were not required. Further, plaintiff alleged that her claims against the defendants were administrative and clerical, not professional. The trial court agreed with plaintiff's argument and ruled that the Judgments of Non Pros were improperly entered. The trial judge relied upon Judge Wettick's opinion in Herrmann v. Pristine Pines of Franklin Park, Inc., 64 D.&C. 4th 14 (C.P. Allegheny County, 2003), stating that the defendants waived their right to file Praecipes for Judgment of Non Pros because they did not file preliminary objections to plaintiff's complaint. In accordance with the opinion in Hermann, the trial judge stated that if plaintiff's complaint did not expressly assert a professional liability claim, the defendants were to file preliminary objections. As neither defendant filed preliminary objections raising this issue, the defendants waived their claim that plaintiff violated Pa.R.C.P. 1042.3 and were not entitled to Non Pros judgments.

On appeal to the Superior Court, Mr. Peel argued that a nursing home clearly falls under the definition of a healthcare provider as defined by 40 P.S. § 5101.1(c). Further, Mr. Peel contended that the plaintiff's complaint clearly sounded in professional negligence and therefore she was required to file a Certificate of Merit. The Superior Court agreed with Mr. Peel's arguments and stated that plaintiff's allegations of a nursing home's failure to send a patient's records to another nursing home and the second nursing home's failure to realize that insufficient information was sent falls under the "furnishing of health care services." Pa. C.S.A. § 5101.1(c). Accordingly, plaintiff's action was sounded in professional negligence which required a Certificate of Merit. The entry of Non Pros was proper and the trial court's opening of the judgment was reversed.


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