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."