From The Listserv (Continued from page 24)
formed consent does not require certifi- cate of merit. None was filed. Negligence does. What’s the procedure: file new case in HCA with certificate and then waive out and then move to consolidate? Any- thing simpler? Since certificate of merit seems to be jurisdictional, I do not want to rely upon a stipulation that some in- surer post verdict might feel happy to renege on. Thoughts?
From: Wayne Willoughby <
WMW@medlawlegalteam.com>
Phil: In the past defense attorneys have
“kindly” offered to allow me to add new defendants (whom they will represent in the litigation) to pending circuit court actions without first filing a statement of claim with the HCAO. I have always turned down these “considerate gestures” for fear they are a means of creating a non-waivable juris- dictional defect to be sprung against my client later in the litigation (for example on the eve of trial, after a plaintiff’s verdict or after limitations have expired).
So in your case, I believe it would be pru- dent for you to file a fresh action at the HCAO with a certificate of merit, unilat- erally waive thearbitration, then amend your pending circuit court complaint to allege your new cause of action and the fact that you filed a statement of claim and cer- tificate of merit with the HCAO. Alternatively, after you unilaterally waive ar- bitration on the new claim, you could file a new complaint with the circuit court and move to consolidate.
I’d be interested if anyone views the matter differently.
Sent by Member: W. Scott Sonntag <
wss@forsondri.com> Once the case is waived, it’s waived.
HCA prefers the courtesy of receiving a copy of your amended complaint nam- ing new defendants. If you are simply naming new defendants who you contend are responsible for the same injury, it is not necessary to file a new action and move to consolidate. If it makes you feel safer, file an amended statement of claim as well, but it really is not necessary. Dis- cuss the details with either Dale Garbiss or Darrell Washington at HCA. 1-(800)- 492-1951. I am unaware of any lead de- fense attorneys who ever intentionally try
to lull a respected plaintiff’s attorney into a fatal procedural error re HCA vs. Cir- cuit Court, but perhaps I just hang around with the good guys and gals. I repeat, in this business you generally GET WHAT YOU GIVE. FYI.
From: “Wayne Willoughby” <
WMW@medlawlegalteam.com>
Scott:
Thanks for sharing your views on the matter. I am glad someone (who in a former life was an experienced defense attorney) is confident that the Court of Appeals would hold that one need not bother with HCA when: 1) adding a new medical malpractice defendant in circuit court; or, 2) amending a circuit court in- formed consent action (which does not require a certificate of merit) to add for the first time a malpractice count requir- ing a certificate of merit. My concern remains, however, that the defendant in the first example would claim that the plaintiff failed in his duty to arbitrate the claim as against him, and the defendant in the second example would claim that the plaintiff used waiver of an informed consent claim as a means of circumvent- ing the certificate of merit requirement and the (now largely illusory)duty to ar- bitrate. I may be (no I am) paranoid, but I wouldn’t want to be the test case for these issues even if Harry Chase himself were to tell me it is ok to ignore HCA. Others may disagree, but to me the minor incon- venience of sending a messenger to HCA with a statement of claim, certificate of merit and waiver of arbitration, is a small price to pay for peace of mind. Also, while I too would find it hard to believe that the top notch malpractice defense attor- neys would intentionally try to lull an experienced plaintiff’s attorney into a ju- risdictional trap, shame on me if my client were thrown out of court because I chose to take the easy road rather than the safe road. After all, does it really mat- ter what the defense attorney intended if the court, sua sponte, notes a non waivable jurisdictional defect and dismisses my client’s case?
From: “W. Scott Sonntag” <
wss@forsondri.com>
I did not mean to imply that you do not need to file an amended certificate of qualified expert when you add a new de- fendant. It’s just that I believe it may be filed in Circuit Court with the amended complaint. Stipulations with counsel are a rule in my practice. But, again, do what works for you. Beat that drum; blow that horn, make some music!!!!
(Continued on page 32) 26 Trial Reporter Summer 2001
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