by David M. Reutter

In a precedential opinion issued on August 21, 2023, the U.S. Court of Appeals for the Third Circuit held that a federal prisoner incarcerated in the state need not satisfy a state-law requirement for a certificate of merit in order to proceed with a medical malpractice claim under the Federal Tort Claims Act (FTCA).

The case dates to November 2017, when Marquis Wilson was a pretrial detainee at the Federal Detention Center (FDC) in Philadelphia. He complained about a lump in one of his testicles, and medical staffers noted testicular swelling that they allegedly said was probably cancerous. But no further action was taken despite Wilson’s continued complaints that his condition was worsening. After he was convicted and sentenced, Wilson was transferred to the custody of the Bureau of Prisons (BOP) and seen by medical staff at the U.S. Penitentiary (USP) in Allenwood.

They referred Wilson to a urologist, who determined the lump was cancerous. On February 21, 2018, Wilson underwent surgery to remove his right testicle. Medical staff at USP-Allenwood allegedly told Wilson that “the lump should have been treated earlier for best results but by that point the only course of action was to remove one of his testicles,” as the Third Circuit later recalled.

Wilson believed his cancer could have been caught earlier, avoiding chemotherapy and invasive surgery, which he asserted led to side effects including the loss of ejaculatory function. After exhausting his administrative remedies, Wilson brought his FTCA claim in the U.S. District Court for the Eastern District of Pennsylvania.

FTCA provides for a waiver of sovereign immunity for defendant government officials in personal injury claims “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred,” as laid out in 28 U.S.C. §1346(b)(1).

The district court, after protracted delay due to COVID-19 and a failed attempt to recruit counsel for Wilson, granted summary judgment to the Government on the grounds that Wilson failed to satisfy the certificate requirement of Rule 1042.3 of Pennsylvania Rules of Civil Procedure. That rule “requires a Pennsylvania plaintiff claiming professional malpractice to file a so-called ‘certificate of merit’ either with the complaint or with 60 days of filing it,” the Third Circuit later noted, adding that the certificate “must attest that either (1) an appropriate licensed professional supplied a written statement that there exists a reasonable probability that the professional services provided fell outside acceptable professional standards, or (2) expert testimony of an appropriate licensed professional is necessary.”

In addition to his failure to abide by the certificate requirement, the district court further found that Wilson’s claim was lacking expert testimony which was needed to exclude other causes of the harm incurred. It therefore granted a motion to dismiss the complaint by defendant government officials. Wilson appealed.

The Third Circuit began by noting that Rule 1042.3 acts like a “pleading barrier intended to weed out malpractice claims” early in proceedings to avoid wasting time and resources. But the certificate of merit does not determine liability, nor is it an element of the claim. The Government argued that Rule 1042.3 is applicable to the FTCA claim because it is substantive state law. In fact, the Third Circuit had earlier held so in Liggon-Redding v. Est. of Sugarman, 659 F.3d 258 (3d Cir. 2011).

But now the Court said that case was different because it “engaged in the choice-of-law analysis for purposes of diversity jurisdiction.” In Wilson’s case, though, “the FTCA’s statutory language includes an explicit mandate articulating the precise bounds of state law incorporation in an FTCA case,” which differs from the language relevant to a diversity inquiry.

In Pennsylvania, the Court continued, a medical malpractice plaintiff “must establish a duty owed by the physician to the patient, a breach of that duty by the physician, that the breach was the proximate cause of the harm suffered and the damages suffered were a direct result of the harm,” citing Hightower-Warren v. Silk, 548 Pa. 459 (1977).

This, the Third Circuit said, “is precisely the sort of liability-determining law that the FTCA incorporates.” But Rule 1042.3 is not incorporated into the FTCA because it is “a technical requirement dictating what plaintiffs must do in Pennsylvania state court to vindicate their rights.”

The Court noted Wilson’s case had been pending for several years, and it commended the district court for granting extensions and attempting to recruit counsel. Wilson’s failure to conduct any discovery during that time would ordinarily merit summary judgment, but he “was a prisoner proceeding pro se during the COVID-19 pandemic, a period during which prisons were on frequent lockdown,” the Court noted. These factors undermined his ability to obtain an expert. Therefore granting Defendants pre-discovery summary judgment was an error. Wilson was represented before the Court by attorneys from Williams & Connolly LLP in Washington, DC. See: Wilson v. United States, 79 F.4th 312 (3d Cir. 2023).

The case has now returned to the district court, where Wilson is proceeding pro se once again. PLN will update developments as they are available. See: Wilson v. United States, USDC (E.D. Pa.), Case No. 2:19-cv-04257.  

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