When I lecture on medical malpractice issues, I am frequently asked whether in a medical liability claim, and for that matter, any other claim where a certificate of merit is required: "Should I file a certificate of merit on a vicarious liability claim?" I always answer: "It is not necessary, but I would do it anyway." Is my answer correct? In a recent medical malpractice case, I told a paralegal in the office that we did not need to do a certificate of merit in a medical liability claim. She looked at me as though I had lost my mind, and told me I was wrong. She brought in the applicable rule of civil procedure, put it down on my desk, crossed her arms, and demanded that I give her a more intelligent answer than simply "don't do it." Of course, I was ignoring my own advice that I give publicly.

I decided to take another look at this interesting and complex question. Under the Pennsylvania Rules of Civil Procedure, a certificate of merit has to be based upon the statement of a licensed professional. That means, in a medical malpractice case, for example, that the expert has to give the statement that there is vicarious liability even though there is potentially no corporate claim and no direct negligence on the part of the hospital. Isn't this a legal question? How is a doctor going to say there is vicarious liability unless he also happens to be a doctor or a lawyer? Many times, experts, even on corporate liability, are not necessarily doctors since corporate liability can involve matters of administration. A corporate claim is a horse of a different color, and the extent of our discussion here only relates to vicarious liability claims.

The problem is not so much with the rule, but rather with the note to the rule. Pennsylvania Rule of Civil Procedure 1042.3(a)(2) states, as follows: "In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff … shall file a certificate of merit … that either … the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or … In a vicarious liability claim, no one is asserting that the hospital employer, for example, deviated from an acceptable professional standard."

However, the paralegal argued that if there are allegations that the doctor/employee deviated from acceptable professional standards, then the language would apply requiring a certificate of merit that would state that the hospital is responsible for the deviation from the doctor's violation of an acceptable professional standard. So, what does the note have to say about this? Thus Sprach Zarathustra:

"Note: A certificate of merit, based on the statement of an appropriate licensed professional required by subdivision (a)(1), must be filed as to the other licensed professionals for whom the defendant is responsible. The statement is not required to identify the specific licensed professionals who deviated from an acceptable standard of care. The purpose of this subdivision is to ensure that a claim of vicarious liability made against a defendant is supported by a certificate of merit. Separate certificates of merit as to each licensed professional for whom a defendant is alleged to be responsible are not required. Only a single certificate of merit as to a claim under subdivision (a)(2) is required."

Subsection (b)(1), which reads, "A separate certificate of merit shall be filed as to each licensed professional against whom a claim is asserted," Pa. R. C. P. 1942.3(b)(1), was amended to add the following note:

"Note: This subdivision relates to licensed professionals named as defendants."

It should not be interpreted to require certificates of merit under subdivision (a)(2) or otherwise as to nondefendant licensed professionals.

A certificate of merit must be based upon a "written statement" of an appropriate licensed professional. That is the language of Rule 1042.3(a)(1), but that introductory language does not appear in subdivision (a)(2). Does that mean that the lawyer must sign a certificate of merit but does not need to have a "statement" to back it up? That interpretation would appear to be contrary to the language of the first sentence of the note to (a)(2) but neither rule nor the note directly respond to that Byzantine question. However, the form "required" under Rule 1042.10 includes the language "and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals … fell outside acceptable professional standards" Pa. R.C. P. 1042.10, even though the actual text of Rule 1042. 3 (a)(2) does not use the term "written statement."

The text of the required form would seem to supply the answer to the question we have posed, although the note added in 2016 to subdivision (b)(1) clouds the matter somewhat. If a certificate of merit based upon a written statement is necessary for vicarious liability claims as is stated in the note to (a)(2), what does (b)(1) mean? Apparently, it is intended to suggest that a single vicarious liability certificate filed against a hospital, for example, based upon a written statement, will suffice as to non-defendant agents of the hospital.

What does the case law have to say about this thorny issue? See, generally, Chapter 26.6.1.1, "Hospital or Corporate Entities," Medical Malpractice in Pennsylvania, Rieders, Clifford, 2019 edition. The cases do not seem to be absolutely dispositive, but there are a few that are somewhat reflective even if in a very minimal way:

• Olshan v. Tenet Health System City Avenue, 849 A.2d 1214, Pa. Super. 2004 (Klein, J.). This 2004 case said that "no such certificate is required for allegations made against the hospital or other corporate entity." The issue in the case was venue, so the statement is dicta. There is no particular discussion.
• Kennedy v. Butler Memorial Hospital, 901 A. 2d 1042 (Pa. Super. 2006). In a footnote, Judge Richard Klein clarified Olshans, "where in dicta I stated that no certificate of merit was necessary for the hospital in that case." Klein explained: "In Olshan, the plaintiff's claim against the hospital was for corporate liability. I did not mean to imply that no certificate of merit would be required for actions of a hospital's agents under a vicarious liability theory. In hindsight, it seems that I well might have been wrong that no certificate of merit is needed to show corporate liability."
• Rostock v. Anzalone, 904 A.2d 943 (Pa. Super. 2006), was decided two years later with an opinion by Judge John T.J. Kelly. This decision states that based upon the note to 1042.2, the plaintiff must supply a certificate of merit where the complaint sounds in professional malpractice as opposed to negligence. "Thus, the allegations of corporate negligence implicit in these claims require a supporting certificate of merit and expert testimony." It does appear that corporate negligence claims will always require a certificate of merit to be signed by the attorney and thus the statement from a licensed professional. Averments that involve allegations of ordinary negligence such as failing to send copies of CT scans and X-rays are not professional negligence. "As a result these claims would survive even in the absence of a certificate of merit." Claims against the supervising professional, however, for "failure to perform 'appropriate follow up' or 'to recommend appropriate workup' for the decedent, to notify the decedent of the X-ray findings, or to maintain proper patient records" were considered allegations of professional not clerical failure, and "even if any of these claims, e.g., maintenance of patient records, were to be characterized as purely clerical functions, Appellee Anthony Anzalone, as the professional charged with supervising employees in a professional context, would be responsible for their derelictions under the doctrine of vicarious liability." Therefore, a certificate of merit was found to be necessary.
• Ebokosia v. Albert Einstein Medical Center, 2006 Phila. Ct. Com. Pl. LEXIS 453 (Nov. 7, 2006), aff'd without op., 929 A. 2d 251 (Pa. Super. 2007). The Philadelphia Court of Common Pleas was not clear if the matter was corporate, a vicarious liability claim, or both. The complaint is footnoted in the opinion, but the complaint cannot be found.
• Shon v. Karason, 920 A. 2d 1285 (Pa. Super. 2007). This case involved a suit against a podiatrist and his employer, a podiatric center. The allegations against the Center were based upon vicarious liability for the professional negligence of the podiatrist. The Superior Court adopted the trial court's opinion that a certificate of merit was required, for the center, stating inter alia, to hold that a certificate of merit is not required in a situation where the allegation is against the entity rather than the individual, but is still grounded in the individual's alleged negligence, would create an easy manner for litigants to circumvent the certificate of merit requirement.
• Estate of Aranda v. Amrick, 987 A.2d 727 (Pa. Super. 2009). The plaintiff in Aranda had filed 14 certificates of merit, however, a certificate of merit regarding Ponnathpur was not submitted. The doctor's motion for entry of the judgment of non pros was granted one day after the 60-day time period to file certificates of merit under Pa.R.C.P. No. 1042.3. The plaintiff filed a petition to open, claiming an oversight she was unaware of until entry of the notice of entry of a judgment of non pros. The petition was denied. On appeal, the Superior Court reversed, finding the plaintiff's excuse to be reasonable. On the issue of the existence of a meritorious action, the Superior Court considered that the plaintiff had filed a certificate of merit as to the vicarious liability claims of the doctor's employer, in which "an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm.
• Stroud v. Abington Memorial Hospital, 546 F.Supp.2d 238; (E.D. Pa. April 17, 2008)(Strawbridge, M.J.). This case, decided in 2008, clearly ruled that a certificate of merit is involved even where there is a vicarious liability claim. While the decision is not binding on state courts, it is certainly of interest. "Where the COM sets out a vicarious liability claim, additional COMs must also be filed as to each licensed professional for whom the defendant is alleged to be vicariously liable." This was said to be required as a result of a Dec. 5, 2005, amendment clarifying that even a vicarious liability claim requires a certificate of merit. But again, is the note consistent with the literal text of the rule?
• Robinson v. Corizon Health, 2016 U.S. Dist. LEXIS 43237, (E.D. Pa. Mar. 30, 2016), followed Stroud in finding the failure to file certificates of merit as to each professional for whose behavior the corporate defendant allegedly bears vicarious liability provided an alternative basis for dismissal of the plaintiff's claims, relying also on Rostock, supra.

This is an issue that the Pennsylvania Supreme Court Rules Committee may review, or perhaps some innocent lawyer will stumble into failing to provide a certificate of merit, or a statement to back it up, and a court decision will emanate from a higher authority. The bottom line is that the paralegal, Laurie Deuel, was correct; at least so says the drafter's notes and the emerging case law.

Such are the vagaries of the law!

Cliff Rieders, of Rieders, Travis, Humphrey, Waters, & Dorhmann, is a board-certified trial advocate in Williamsport, past president of the Pennsylvania Trial Lawyers Association and a past member of the Pennsylvania Patient Safety Authority. Contact him at [email protected].