A man underwent laparoscopic adjustable gastric band surgery, a procedure intended to place a band around a person’s stomach to limit the person’s food intake and help him or her lose weight. The surgeon who performed the procedure mistakenly left the band free floating in the man’s abdomen. As a result, the man failed to lose weight. The man suffered internal scarring, limiting his options for similar surgeries into the foreseeable future.
The man sued the surgeon for medical malpractice in the United States District Court for the Western District of Pennsylvania under the substantive law of the State of Pennsylvania. Pennsylvania law requires malpractice plaintiffs to file a certificate of merit (COM) within 60 days of bringing suit. After fair notice to the plaintiff, following 30 days to allow for cure, a defendant may file a motion to dismiss if the plaintiff failed to file a COM within 60 days of bringing suit. Realizing that no COM had been filed with the complaint, the surgeon waited out the 60-day window, and on day 69, filed a motion to dismiss. On day 70, the man’s counsel replied to the motion appending the missing COM and an affidavit explaining that counsel had timely consulted with a doctor but, due to an oversight, had not prepared a COM. The district court granted the surgeon’s motion to dismiss.
The Third Circuit United States Court of Appeals reversed and remanded. The court held that, as matter of first impression, the notice requirement in Pennsylvania’s certificate of merit (COM) statute was substantive state law that had to be applied by the federal court and the surgeon’s failure to provide fair notice to the man before seeking dismissal for failure to file a COM required reinstatement of the action.
As matter of first impression, the notice requirement in Pennsylvania’s certificate of merit (COM) statute was substantive state law that had to be applied by the federal court. The court held that the notice requirement was substantive state law under the Erie doctrine and therefore must be applied by a federal court sitting in diversity. Courts apply a three-part test to decide whether a state law is substantive or procedural for Erie purposes. First, the court determined there was no direct collision between a federal rule and the notice requirement in Pennsylvania’s COM statute. Second, as there was no direct collision, the court found that failing to require notice was plainly outcome determinative and applying the notice requirement in Pennsylvania’s COM statute would ensure equitable administration in both federal and state courts and would prevent forum shopping by discouraging defendants from removing to federal court when faced with actions filed near the end of the statute of limitations. Finally, the court considered whether any countervailing federal interests prevent the state law from being applied in federal court and found no federal interest weighing against applying the same notice requirement as the Pennsylvania Supreme Court.
The surgeon’s failure to provide fair notice to the man before seeking dismissal for failure to file a COM required reinstatement of the action. The court reasoned that were this case in state court, the man’s claim would not have been dismissed because his attorney filed the COM as soon as he was notified of the deficiency and well within the 30-day window for cure. Because the surgeon had not waited 30 days after giving notice of the deficiency to allow for cure before filing his motion to dismiss, the surgeon did not have the right to seek dismissal.
The Third Circuit United States Court of Appeals reversed the district court’s dismissal of the man’s medical malpractice claim.
See: Schmigel v. Uchal, 2015 WL 5131465 (C.A.3 (Pa.), September 2, 2015) (not designated for publication).
See also Medical Law Perspectives, June 2015 Report: Gastric Bypass, Sleeve Gastrectomy, Lap Banding and More: Risks of Patient Injury and Provider Malpractice in Weight-Loss Surgery