Uniformity, federalism, and tort reform: the Erie implications of medical malpractice certificate of merit statutes.

Author:Grossberg, Benjamin

INTRODUCTION I. BACKGROUND A. Relevance to Health Care Reform B. Survey of Statutes C. Relevance in Federal Court D. Past Decisions E. Other Scholarly Work II. THE ERIE ANALYSIS A. The Federal Rules of Civil Procedure: Hanna's First Prong.. 1. Determining Whether There Is a Controlling Federal Enactment on Point 2. Rules 8, 9, and 12 a. Statutes Requiring Plaintiffs to File Certificates of Merit and Complaints Simultaneously b. Statutes Requiring Plaintiffs to File Certificates of Merit by a Specified Point in Time After the Filing of Complaints c. The 12(b)(6) Question d. The Role of Twombly and Iqbal 3. Rule 11 a. Rule 11 's Qualified Rejection of Verifications or Affidavits b. The Heightened Verification and Certification Requirement Implemented by Certificate of Merit Statutes c. Discretion to Punish Under Rule 11 4. Rules 26 and 37 a. Disclosure Timing b. Nontestifying Experts Under Rule 26 c. Punishment for Noncompliance Under Rule 37 B. The Two Prongs of Hanna: A Paradox III. THE POLICY IMPLICATIONS OF CERTIFICATE OF MERIT STATUTES CONCLUSION INTRODUCTION

Medical malpractice "certificate of merit" statutes are pieces of state legislation designed to reduce frivolous malpractice lawsuits and associated costs. (1) Although the statutes vary in the requirements they place on litigants and in the breadth of lawsuits to which they apply, they all require the plaintiff in a malpractice action to consult with an expert either before the suit is filed of within a fixed period of time thereafter. (2)

This Comment addresses whether, under the Erie doctrine, these statutes are applicable in federal court. It then considers the policy implications of the answer. This Comment concludes that the statutes ate not applicable in federal court. A faithful application of Hanna (3) and its progeny--including the Supreme Court's recent decision in Shady Grove (4)--shows that the vast majority of the statutes conflict with one or more of the Federal Rules of Civil Procedure. The few that are not clearly in conflict are not outcome determinative when that test is applied as Hanna instructs. As to the policy question, this Comment observes that Hanna tends to require the subordination in federal court of certain state laws designed to regulate specific areas of policy. Questioning whether reform is needed to provide greater protection, this Comment analyzes both radical and moderate suggestions for reforming the Erie doctrine, incorporating where appropriate the three main viewpoints represented in Shady Grove. The policy discussion concludes by analyzing how a moderate adjustment to Hanna might affect the certificate of merit issue.

Part I contains a brief discussion of the timeliness of this issue, followed by an overview of the statutes currently enacted, a survey of past decisions, and a review of other scholarly works. In order to determine whether these statutes conflict with the Federal Rules, Section II.A analyzes the decisions in which the Supreme Court has indicated whether or not a state statute and a Federal Rule conflict. To the extent possible, that Section extracts the legal principles animating those decisions and uses them as a framework to analyze whether various state statutes conflict with Rules 8, 9, 11, 12, 26, and 37. Concluding that conflicts do exist, the discussion in Section II.A points out errors in the reasoning of the courts that have concluded otherwise. Section II.B discusses the modified outcome determination test and how its application reveals a paradox built into Hanna, which favors the application of federal law. Part III discusses policy implications.


    1. Relevance to Health Care Reform

      The debate on health care reform culminating in the March 2010 passage of the Patient Protection and Affordable Care Act (5) gave new prominence to certificate of merit statutes. As proponents and opponents of medical malpractice reform debated the virtues of various reform proposals, (6) the certificate of merit garnered national attention as a type of malpractice reform that was less controversial than limiting damages or attorneys' fees.

      In July of 2009, during a markup of an early version of the health care reform bill, the House Committee on Energy and Commerce approved an amendment offered by Representative Bart Gordon encouraging states to implement certificate of merit legislation. (7) The amendment created an incentive-payment program to reward states for implementing certain kinds of medical liability reform. (8) Under the amendment as passed by the Committee, Congress would have been authorized to appropriate funds that the Secretary of Health and Human Services could then distribute to states whose malpractice reform programs were "effective" and in compliance with the amendment's guidelines. (9) Those guidelines allowed incentive payments to be made if a state enacted certificate of merit laws, early offer laws, or both. (10)

      During President Obama's ultimately fruitless attempt to win Republican support for health care reform, he stated to a joint session of Congress in September 2009 that he would instruct the Department of Health and Human Services to begin immediately providing incentives for states that implemented appropriate medical malpractice reform proposals, rather than wait for the passage of a final bill. (11) White House officials specifically indicated that eligible state legislation could include laws implementing expert-certificate requirements. (12) They further indicated that Representative Gordon's amendment was "a model for what Obama has in mind." (13)

      Although the House of Representatives subsequently passed the Gordon amendment as part of a larger health care reform bill, (14) the specific bill into which the amendment was incorporated was not the final bill that the President ultimately signed into law. (15) President Obama nonetheless delivered on his promise to create an incentive program without waiting for specific congressional approval. On October 20, 2009, the Agency for Healthcare Research and Quality, a division of the Department of Health and Human Services, released a Request for Applications detailing the grant program. (16) The program offered up to $3 million per state (up to a total of $21 million for the entire program) for the implementation of current or future medical liability models that, among other things, reduce both "the incidence of frivolous lawsuits and liability premiums." (17) An Administration fact sheet confirmed that this grant program corresponded to the initiative that the President had mentioned to Congress. (18) Recent national attention , along with an Obama Administration-provided stamp of federal approval, make an analysis of the applicability of certificate of merit statutes in federal court relevant and timely.

    2. Survey of Statutes

      State certificate of merit statutes vary widely in their exact provisions. For instance, some are limited to medical negligence while others cover other types of professional negligence as well. (19) For the purposes of this discussion, however, it is useful to categorize them into three rough groups.

      The first category consists of statutes that require the attorney, when filing the complaint, to certify that she has consulted with an expert and that the expert has indicated that the claim has at least a reasonable chance of being meritorious. For instance, Florida's statute asserts that

      [n]o action shall be filed for personal injury or wrongful death arising out of medical negligence, whether in tort or in contract, unless the attorney filing the action has made a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate of counsel that such reasonable investigation gave rise to a good faith belief that grounds exist for an action against each named defendant. For purposes of this section, good faith may be shown to exist if the claimant or his or her counsel has received a written opinion, which shall not be subject to discovery by an opposing party, of an expert as defined in s. 766.102 that there appears to be evidence of medical negligence. (20) Other states with statutes falling into this category include Minnesota, Mississippi, New York, North Carolina, Oklahoma, and Tennessee. (21)

      The second category consists of statutes that require the attorney to file a certificate or affidavit from the expert herself, rather than a certificate merely verifying that a consultation has occurred. For example, Ohio's Rule of Civil Procedure 10(D) requires that the complaint in any medical negligence claim include one or more "affidavits of merit" per defendant. (22) Each affidavit must include

      (i) [a] statement that the affiant has reviewed all medical records reasonably available to the plaintiff concerning the allegations contained in the complaint; (ii) [a] statement that the affiant is familiar with the applicable standard of care; (iii) [t]he opinion of the affiant that the standard of care was breached by one or more of the defendants to the action and that the breach caused injury to the plaintiff. (23) Other states that employ or have employed a similar approach include Connecticut, Delaware, Georgia, Illinois, Michigan, Nevada, South Carolina, and Washington. (24)

      The third category consists of statutes that require the filing of certificates or affidavits similar to those in the first two categories; however, rather than mandating that plaintiffs file certificates with the complaint, these statutes require the certificate to be filed within a set period of time after the complaint. For instance, New Jersey's statute requires that

      [i]n any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a...

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