Dealing with Unidentified/Identified Agents Not Named as Defendants in a Complaint

A trend we are seeing in medical malpractice cases is that plaintiffs are naming hospitals as the sole defendant in their complaints. The plaintiff will then allege that the hospital is vicariously liable for anyone and everyone who provided medical care during his or her admission or admissions. Normally, the complaint does not provide much detail about the individuals for whom the plaintiff deems the hospital vicariously liable. In some instances, certain physicians and staff are listed in the factual section of the complaint. The plaintiff then files a single certificate of merit against the hospital pursuant to Pennsylvania Rule of Civil Procedure 1042.3(a)(2), claiming that the hospital is responsible for the negligent actions of the “other licensed professionals.”

This scenario is problematic for the hospital when the plaintiff’s medical care spans across multiple admissions and involves medical care provided by several types of medical specialties. If the complaint is vague on agency, how and when will the hospital be apprised of the identities of the alleged agents and their actions? Unfortunately, preliminary objections requesting the court to strike vague allegations of agency are often overruled. As such, the recommended course of action is for the hospital to file a Notice of Intent to Enter Judgment of Non Pros due to the plaintiff’s failure to file separate certificates of merit for the individuals, or other licensed professionals, for whom the plaintiff deems the hospital vicariously liable. The hospital should also file preliminary objections requesting the court to strike the vague allegations of agency and limit the hospital’s vicarious liability to only those individuals for whom the plaintiff has filed certificates of merit.

Depending on the jurisdiction, plaintiff’s counsel could file the additional certificates of merit and oppose the filings or could file a Motion to Determine Necessity to File Additional Certificates of Merit. Unfortunately, the rulings on this issue have been inconsistent from county to county. In some instances, judges in the same county have issued conflicting orders. The reasons for the conflict begins with the legislative history of the certificate of merit rules. These rules were adopted in January 2003 and were amended several times, with the last amendment occurring on May 1, 2013. When Rule 1042.3 was originally drafted, the Note to Rule 1042.3 (a)(2), regarding certificates of merit for vicarious liability, read: “Certificates of merit must be filed as to the other licensed professionals whether or not they are named defendants in this action.” On February 11, 2005, the Supreme Court issued an amendment to the Rule 1042.3(a)(2) note. Unfortunately, the first sentence and the second sentence conflict with each other:

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.

While the note indicates that the plaintiff must file 1042.3(a)(1) certificates of merit for the other licensed professionals for whom the plaintiff alleges the hospital is vicariously liable, it also indicates that the plaintiff is not required to identify the specific licensed professionals. Hence, the court struggles with determining whether the plaintiff must file additional certificates of merit.

The question that is always asked by plaintiff’s counsel after a notice of intent or preliminary objections is filed on this issue is, “What certificate of merit do you want me to file?” The answer to that question depends on the complaint. If the plaintiff files a complaint solely naming the hospital as a defendant, but includes the names of the alleged agents, then the answer is that certificates of merit should be filed confirming the negligence of the alleged agents identified in the complaint. If the plaintiff is alleging that a nurse, cardiologist and radiologist were the agents of the hospital and that their medical care was negligent, appropriate certificates of merit need to be filed for those individuals. If the complaint only includes allegations of vicarious liability for the actions of unidentified agents, the answer to the question follows the second sentence of the note to Pa.R.C.P. 1042.3(a)(2), which is that the statement of the certifying expert need not identify the specific licensed professional by name; however, the defense position is that the certifying expert must refer to a class of individuals, such as radiologists, hematologists and/or nursing care. For example, a radiology expert can author a statement which says that he/she believes, based upon their knowledge and experience, that the radiology care and/or treatment at issue fell below the standard of care, rather than saying Dr. X and Dr. Y breached the radiology standard of care. It is the defense community’s interpretation that the rule merely provides some flexibility to a plaintiff’s expert in drafting a statement that will support a certificate of merit.

The defense interpretation follows the spirit and purpose of the certificate of merit. Certificates of merit are required in order to confirm that the medical malpractice case filed has merit because the alleged medical negligence was confirmed after review by an appropriately licensed medical professional. Pursuant to Pa.R.C.P. 1042.3(a)(1) and the corresponding note, while the appropriately licensed medical professional chosen to confirm the alleged negligence does not need to be the expert who testifies at trial, that individual must be an expert who meets the qualifications set forth in 40 P.S. § 1303.512 of the Medical Care Availability and Reduction of Error Act. Section 512 sets forth the expert qualification standards in medical malpractice cases. Essentially, what this means is that a radiologist cannot review a potential case for a plaintiff and confirm the alleged medical negligence of a cardiologist concerning the care provided during a cardiothoracic procedure. This is exactly why the filing of one certificate of merit against a hospital alleged to be vicariously liable for anyone and everyone who provided medical care to the plaintiff during several hospital admissions is nonsensical. If the plaintiff is claiming that the medical treatment provided by a cardiologist, radiologist, neurologist, hematologist, infectious disease specialist, surgeon and nurse were all negligent, then one certificate of merit against the hospital is inadequate, unless the appropriately licensed medical professional who confirmed the medical negligence for the plaintiff specializes in all of those medical specialties. Highly unlikely.

Currently, the Pennsylvania jurisdictions that have ruled in favor of the defense interpretation of the certificate of merit rule include Montgomery, Bucks, Luzerne, Chester and Montour counties. Judges from these counties have limited vicarious liability claims to only those individuals for whom certificates of merits were filed. They have also required plaintiffs to file additional certificates of merit for the individuals for whom they deem the hospital vicariously liable. Unfavorable jurisdictions include Philadelphia and Delaware counties. Philadelphia has rulings that conflict with each other; therefore, success in Philadelphia cases depends on the judge assigned to the pre-trial matter.

Until an appellate court provides guidance as to the correct interpretation of the Note to Pa.R.C.P. 1042.3(a)(2), or the Rules Committee provides an amendment that provides clarification, hospital defendants need to continue with the necessary filings in order to force plaintiffs to identify who they allege are vicariously liable. Absent such a course of action, the plaintiff will have a blank check for agency throughout discovery and the hospital will be left in the dark as to exactly who is alleged to be vicariously liable.

*Joe is an associate in our King of Prussia, Pennsylvania office. He can be reached at 610.354.8486 or JLHoynoski@mdwcg.com.

^{Defense Digest, Vol. 21, No. 1, March 2015}

^{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}