Vermont Medical Malpractice Laws

Being in need of medical attention is already sufficiently stressful. Your health is uncertain, you may be in physical pain, your finances could be strained from medical bills or missing work. Our healthcare providers can act as solace in these trying times, providing comfort and certainty in the form of solid diagnoses, prescriptions to better our health or ease our pain, and procedures to eradicate the source of a problem. If this comfort and certainty is infringed upon by negligence or failure to meet duty of care, your stress can be magnified ten fold.

Bringing a medical malpractice claim in Vermont is a complex, nuanced undertaking and requires skilled legal aid. A successful bid to sue for medical malpractice may provide recompense for the injury inflicted on you or a loved one. This page is meant to provide a brief overview of the provisions involved in Vermont medical malpractice cases, however you are strongly encouraged to speak to an adept medical malpractice attorney to go over the specifics of your case. There are time limits imposed in Vermont for bringing forth a claim, so you will want to act as quickly as possible if you suspect an incident of medical malpractice. Vermont does not impose caps on how much money an injured claimant can be awarded if they win a case, however any contribution a claimant makes to their own injuries is taken into account. To win a Vermont medical malpractice case, you will require expert witness and testimony, irreproachable proof, and most importantly – expertly implemented litigation.

Suing For Medical Malpractice in Vermont

An important thing to note if you plan to file a malpractice claim in Vermont is the state’s disposition towards the issue, and how past cases have unfolded. The Vermont Supreme Court was careful to note, and stress, that “a physician is not required to be infallible.” Moreover, a plaintiff cannot file suit strictly on the basis of a bad result from medical care. Nevertheless, Vermont aims to require “compensation for… patients injured as a result of reasonably avoidable medical errors.” [1]

The state’s research reports on medical malpractice cite the following catch-all definition of it: ” a health care provider has been negligent by failing to meet the acceptable standard of care owed to the patient, and as a result of that negligence, the patient has been harmed.” [2]

In Vermont medical malpractice claims, the claimant has the responsibility to prove the following:

1. The standard that a healthcare professional must meet with regard to knowledge, skill and care – which any other prudent healthcare professional would meet under similar circumstances
2. “That the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care”
3. The claimant suffered injury as a direct result of the defendant’s failure to meet the standard of knowledge, skill and care [3]

Taking into account that it is a relatively small state, Vermont ranks incredibly low and sometimes dead last in different aspects of paid medical malpractice claims. While there are no damage caps for such claims, it is very rare that claims even go to trial. 98% of Vermont medical malpractice cases are successfully arbitrated, meaning they were settled before even going trial. [2] The average number of annual claims paid out for medical malpractice claims is 30. [1] In general, claims take about two years to settle once they have been brought forward [2]

How Long Do I Have To A File A Medical Malpractice Case in Vermont?

The first thing to consider in filing a medical malpractice claim is whether it is still within your rights to do so. The state of Vermont imposes time limits on how filing a claim, basing this limit on the average duration of time before an injury is discovered. While some injuries are discovered immediately, others do not manifest for quite some time. Per the statute of limitations for medical malpractice suits, a claim “shall be brought within three years of the date of the incident or two years from the date the injury is or reasonably should have been discovered.” These variant deadlines are meant to cover the different types of situations that can occur. There is also a “statute of repose,” which affords a claimant more time to file if circumstances did not permit discovery of an injury within the three-year limit. This allows a claimant to file up to 7 years after the incident. No statute of limitations applies where “fraudulent concealment” on the part of a healthcare provider prevented discovery of an injury. In cases where a foreign object is found in the patient’s body, if the object is not found within the three year time limit, the claim may be commenced within two years of when it is discovered. [4]

Sometimes an injury is plain to the patient or discovered immediately after malpractice occurs. In this case you should speak to a skilled malpractice attorney as soon as possible to go over the specifics your case.

Remember, even though the countdown to file only begins once the injury is discovered, some evidence is time sensitive and may be less compelling to a judge or jury the longer you wait to bring it forward.

If your case is not time-barred, you will be able to move forward with your claim.

In Vermont Medical Malpractice Cases, Who Is Responsible?

Vermont allows claims to be filed against the personnel of a hospital, a physician, a dentist, a podiatrist, a chiropractor, a nurse , or an osteopathic physician, or any healthcare professional who failed to meet the duty of care owed to their patient. As in any state, this breach of duty has to occur as a result of medical negligence. Vermont has considered reworking its system so that negligence is not the only avenue by which an injured claimant may recover damages, but as of now it remains the only means of doing so. Therefore, your healthcare provider had to have been negligent, and it is your responsibility to prove their negligence and that it was the proximate/direct cause of your injury. The focus in determining negligence is whether or not standards of professional care were met. A health care professional is defined as anyone licensed under Vermont law to perform health services. [3]

A healthcare professional may also be liable for medical malpractice in Vermont if they failed to obtain informed consent from their patient under circumstances where they were required to. Lack of informed consent is defined as “the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation” A malpractice claim for lack of informed consent may not be brought forth in cases of emergency care. [5]

What If I Am Partially To Blame? Can I Still Recover Money For VT Medical Malpractice?

Vermont has adopted a form of the modified comparative fault rule. Like Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Wisconsin, and Wyoming, the state follows the 51% bar rule. The 51% bar rule holds that a plaintiff cannot recover damages in a case where they are 51% or more at fault for their injuries. There have been a sufficient number of cases wherein the medical professional is not exclusively responsible for the injury incurred. Fault can be an interplay between the provider’s actions as well as the patient’s, or the patient has acted in such a way that they exacerbate their own injuries. The court examines these cases of shared blame and determines to what point each party is responsible. In Vermont and the states mentioned above, if the patient is determined 50% responsible or less for the injuries they suffered, they will be entitled to the damages the court awards, to a point. If they are more than half responsible to a degree of 51% or more, then they are not eligible to recover any damages that the court may’ve awarded. Once a percentage of fault, if any, is assigned to the patient, then their entitlement to damages decreases. Let’s say the healthcare professional is deemed 70% responsible for your injuries, and you are deemed 30% responsible. The court awards $100,000 in damages. You are only entitled to $70,000 of that amount because you were 30% responsible. Your share of the fault proportionately reduces your entitlement to damages. So how could fault be a shared affair? Let’s look at an example.

Imagine you become sick after ingesting medication that was prescribed to you by your doctor. A court finds that your sickness was caused by a combination of a disclosed allergy and food that was against the doctor’s instructions that you consumed while on the medication. The court ultimately finds that the doctor never should have prescribed that specific type of medication due to your allergy and assigns the defendant 50% of the blame while assigning 50% of the blame to you for not following the doctor’s instructions when you consumed food that was not permitted while on the medication. Since you were assigned 50% of the blame, you would be able to recover a portion of damages because you were not found to have been 51% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $50,000 after the apportioned 50% of fault is applied.

Some states follow different doctrines regarding fault and damages. A minority of states allow a plaintiff to be as much as 99% AT fault for their injuries and still recover damages, although their proportion of fault similarly reduces the amount they’re entitled to. In cases where a plaintiff is genuinely 99% at fault, the costs of litigation would probably outweigh any damages recovered.

The modified system Vermont has adopted is evenhanded in that it excessively favors neither defendant nor plaintiff. It simply requires that a defendant be more at fault than the plaintiff if the plaintiff is to recover damages for the claim. [6]

Are There Medical Malpractice Recovery Caps in Vermont?

Usually, states impose damage caps in medical malpractice claims. Damage caps put a limit on the amount of money an injured claimant can recover as compensation for their injury and losses. This is meant to prevent absurdly high damage amounts in malpractice cases, which would have a negative result on two counts. Potential for sky-high damage payouts would drive up liability insurance premiums, and doctors would no doubt hand these expenses down to patients with increased health care costs. A lesser worry would be patients bringing meritless malpractice claims in the hope of obtaining mountains in damages, although this concern is more remote. Nevertheless, the state of Vermont imposes no damage caps. In what could be called an interesting contradiction, this has not promoted or encouraged an excess of malpractice claims nor has it driven up liability insurance premiums. Rather, the state lets provisions elsewhere in its medical malpractice law mitigate the risk of those two issues. By placing enormous stress on pretrial arbitration, screening panels to determine merit and conservative payouts, the state manages to rank exceptionally low for damage payouts in medical malpractice claims despite imposing no limits on them.

That being said, there are different kinds of damages a claimant would be entitled to if they win their case. These are economic damages and non-economic damages. Punitive damages are a different type which must be paid by the defendant for the purpose of punishment, however, these are not to be paid to the plaintiff.

Economic damages can include:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work

Non-economic damages are not readily quantifiable, and can include:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life
• Future medical costs
• Loss of future wages

Expert Witness Reporting And Testimony

Testimony of an expert in the field of your claim doesn’t only bolster your case, it’s required by law. Expert testimony is generally the chief avenue by which a plaintiff satisfies the provisions of their burden of proof. Failure to provide reliable and satisfactory expert testimony can lead to a ruling in favor of the defendant. The judge may find an expert’s testimony inadmissible for not meeting the requirements laid out in the Rules of Evidence. After the applicable expert’s testimony or deposition, the defendant is permitted to cross-examine the expert’s qualifications or basis of opinion.

Regarding expert witnesses, Vermont law stipulates that the expert must:

1. Have a current, valid, and unrestricted license to practice medicine in the state in which he or she practices
2. Be board certified in the same area of specialty as the defendant or clinically practices as a specialist in the area of medical practice involved in the case
3. Be qualified by experience or demonstrated competence
4. Be familiar with the standard of care provided at the time of the alleged
5. occurrence
6. Be actively involved in the area of medical practice involved in the case

Vermont permits the use retired physicians who held a license or was board certified in the same area as the defendant, within the last three years. [1]

Expert witnesses will be used in the completion of a Certificate of Merit, discussed below.

Are some parties immune from medical negligence cases?

Generally speaking, a state is protected from suit and damage liability because of something called sovereign immunity. Sovereign immunity means that no person or entity can sue the state for damages. Although medical malpractice cases in almost every state have probed the broad applicability of sovereign immunity, it is usually upheld except in cases where a specific defendant is deemed ineligible to the protection of sovereign immunity. Like every other state, sovereign immunity works to protect the state of Vermont from suit unless immunity is expressly waived by statute. If a plaintiff seeks to a pursue a claim where they believe sovereign immunity does not apply, the plaintiff has “the burden of alleging facts that support the conclusion that sovereign immunity is waived.” This includes the medical centers of state universities where government-employed medical personnel was acting within the scope of their employment. [7]

Those who provide emergency services are generally immune from suit, except in cases of demonstrated gross negligence, where it is the plaintiff’s burden to prove the purported negligence.

Settling medical malpractice cases in Vermont

As said, 98% of Vermont medical malpractice claims settle outside of court due in part to a system that places heavy emphasis on pretrial arbitration.

Those who assert a claim of medical malpractice in Vermont should “submit the claim in writing… prior to the commencement of any trial” to an arbitration panel, provided all parties involved agree to arbitration. An arbitration panel consists of: a judicial referee selected by the Court Administrator, a layperson selected from the panel of laypersons, and a member of the same profession as the respondent to the claim. The latter two will be drawn by lot. Each party will have the opportunity to make up to three challenges with respect to those chosen for the arbitration panel. The court administrator, with the advice and cooperation of the involved parties, will set a date, time and place for a hearing on the claim by the arbitration panel.

The purpose of pretrial arbitration is best articulated under Vermont law as follows: “The purpose of mediation prior to filing a medical malpractice case is to identify and resolve meritorious claims and reduce areas of dispute prior to litigation, which will reduce the litigation costs, reduce the time necessary to resolve claims, provide fair compensation for meritorious claims, and reduce malpractice-related costs throughout the system.” [8]

Litigating medical negligence cases in Vermont

To begin action for a malpractice claim in Vermont, you must first file a Complaint with the clerk of the court.

Initiating the case

No claim of medical malpractice in Vermont may be initiated without the claimant or their attorney first having filed what is known as a Certificate of Merit. The certificate of merit is a tool by which the court may gauge the sufficiency of a malpractice claim and essentially weed out claims that possess no merit. With the certificate, the plaintiff or attorney certifies that they have consulted with a qualified healthcare provider (pursuant to the Vermont Rules of Evidence) and that provider has:

1. Described the applicable standard of care
2. Determined, based on evidence, that the plaintiff will likely be able to show that the defendant failed to meet that standard of care
3. Determined that there is a reasonable likelihood that the plaintiff will be able to show that the defendant’s failure to meet the standard of care caused the plaintiff’s injury

The plaintiff satisfies this measure with multiple consultations that all meet the above requirements. The certificate of merit is critically important. Failure to complete it is grounds for dismissal of your case. The certificate is meant to “screen out meritless malpractice claims at the outset by requiring consultation with a qualified expert at the beginning of a lawsuit.” Vermont is one of the handful of states that require the certificate to be filed at the same time as the Complaint. [9]

Preparing for litigation

After the complaint and the defendant’s answer have been filed with the clerk of the court, the parties may begin the process of discovery. Discovery is a procedure by which both sides of a lawsuit discover pertinent information and evidence, which lets both parties know what to expect at trial. Medical records released by the patient and the healthcare provider will more than likely be used in the discovery process.

Each side may obtain discovery by:

• Deposition
• Written interrogatories
• Production of documents
• Physical or mental examinations
• Requests for admission

A deposition is a fact-finding tool with which the opposing party may ask the deposed witness questions while they are under oath. A deposition usually doesn’t take place in the courtroom. Rather, questions are asked in an attorney’s office. Both parties’ attorneys are usually present to help advise their client on how to answer certain questions and make objections if necessary. The question and answer session is meant to help each side’s attorney in determining where the facts have a solid foundation and where they are being exaggerated.

Written interrogatories are written questions sent to the opposing side that request answers which are used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing party whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury

Pretrial litigation

Vermont’s inclination toward pretrial dispute resolution is perhaps one of the chief characteristics of its medical tort system. Alternative dispute resolution (ADR) is seen as a progressive and positive means of handling malpractice claims, wherein “Both parties [are] required to provide disclosure to one another – the plaintiff of his or her medical records to the extent they are relevant, and the defendant of complete medical records associated with the incident at issue.” Pretrial arbitration often spares both parties many of the expenses and time commitments associated with formal litigation. Some states do not require or take measures to encourage pretrial arbitration at all, but Vermont’s system wherein it is heavily encourages leads to successful arbitration of approximately 98% of malpractice claims.

Trial

In the event that no pretrial settlement is reached, the case will go to formal trial. On average, medical malpractice cases in Vermont take up to two years to be resolved. During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. The trier of fact will be either a judge or jury.

There are certain requirements an individual must meet in order to be a juror in the state of Vermont. A citizen is deemed eligible for jury duty if they are:

• a citizen of the U.S., who has attained the age of majority
• residing within the geographical jurisdiction of the court in which called to serve
• able to read, write, understand and speak the English language
• capable, by reason of mental or physical condition, to render satisfactory jury service
• have not served a term of imprisonment in this state after conviction of a felony

“Voir dire” is legal jargon for the procedure lawyers conduct to screen potential jurors for biases that would sway or prejudice their judgment of the case. Once this process of screening and questioning is complete, the jury is impaneled, and the trial is put in motion.

The plaintiff argues their case first. After opening statements from both sides, the plaintiff’s attorney presents all admissible evidence, then calls all their witnesses to the stand. Witnesses are questioned and more than likely will be cross-examined by the defendant’s attorney. Once all evidence has been presented, the plaintiff will rest their case.

At this point, the defense begins presenting their evidence and will attempt to show why negligence was not the cause of the incurred injury. When both sides have concluded their presentations, the jury will be handed down instructions, begin to deliberate the case and come back with their finding

Appeal

More often than not, the losing side will seek to appeal the court’s decision. A notice of appeal must be filed no more than thirty days from the date that judgment is entered.

How to find the best Vermont Medical Malpractice Lawyer for your case

If you have considered filing a medical malpractice claim, you or a loved one have likely suffered great pain and distress at the hands of a negligent healthcare professional, and rightfully seek recompense for those hardships. Your selection of attorney can have a substantial bearing on the outcome of your case, so it is a critical base to cover if you wish to bring your claim to trial. Handing off your case to skilled Vermont legal representation will leave you free to focus on your recovery or the recovery of your loved one. Therefore it’s of paramount importance to make sure your case has been placed in capable hands.

You are hiring an attorney to suit your needs. Consequently, you are entitled to a careful, thoughtful search conducted at your own pace. Never let an attorney pressure you into hiring them on the spot, rather, interview multiple. Go to every measure necessary to feel confident in your pick. First, narrow down your search to a docket of viable candidates; weigh the pros and cons of each, then make an informed decision.

What criteria should you consider when looking to hire an attorney? Knowledge and experience are the currency of the legal realm, above all. Feel free to inquire as to their level of experience when looking for prospective attorneys. If they have litigated a case similar to your own, they may have more in-depth insight regarding the length of time involved, damages you may be entitled to, and overall costs involved in litigating that kind of case.

You won’t need to be best friends with your attorney, but you should be able to freely and comfortably communicate with them. Lack of solid communication may give rise to rifts or accidental omission of important information in a case, so if you and a potential attorney do not communicate well, you are probably best moving on to another candidate.

Some notable medical malpractice law decisions from Vermont

Lockwood v. Lord

Lockwood v Lord centered around the case of Adam Lockwood, an 11-year-old with cerebral palsy who broke his leg. The defendant, orthopedic surgeon Dr. Lord, set the fracture and applied a full-length cast. Dr. Lord conducted follow-up exams, replacing the full-length cast with a short one approximately one month after injury. When the short cast was removed, Lockwood was completely unable to walk. Lord later observed the severe external rotation of Lockwood’s foot and recommended surgery to correct it, which was performed by another surgeon. Lockwood won the case and a total of $240,000 were awarded in damages. The defendant made a motion for judgment notwithstanding verdict on the grounds that the plaintiffs did not introduce sufficient evidence to support a claim that a breach of duty of care proximately caused the patient’s injury; the defendant also took issue with the jury instructions.

The medical minutia at the heart of the case concerned proper X-ray procedure, as Lord’s judgment of rotational alignment was based on an X-ray that did not include the joint above and the joint below the fracture. The court concluded that correct X-rays were not taken. Furthermore, the jury found that the standard of care was in fact breached, and not only on account of the improper X-ray. The aspect of this case that ultimately made it worthy of citation in legislature and later state research reports came from the defendant taking issue with the jury instruction. The court, and therefore the instructions, made it very clear that “negligence cannot be based on a bad result alone.” Lord thought that this point was not properly stressed in the instructions, even though the instructions made a point of saying that a good result is not required of the physician as long as they dutifully and meticulously meet the standard of their profession.

The case is cited in a state report’s discussion of how a bad result does not equate to negligence. In this case however, Lord did fail to meet the standard of care thus it was a case of negligence and therefore a meritorious claim of medical malpractice. [10]

Utzler v. Medical Center Hospital of Vermont

Although Ultzler did not bring about the following principle, it is often cited in discussions of it: the principle being that “a physician is not required to be infallible.” In this medical malpractice case, this line accidentally exempted from the jury instructions, and the defendant made a motion to correct the exemption. The court teetered on the issue, not wanting to provide undue emphasis to a single instruction. Once the instruction was relayed, the plaintiff claimed that there was, in fact, undue emphasis because of the circumstances. The court ruled in favor of the defendant. The case served to underline the importance of the fact that a physician “is not required to be infallible.” [11]

Footnotes

[1] Vermont. Agency of Admin. Medical Malpractice Reforms Rept. and Prop. of the Secretary of Administration Pursuant to Act No.48 of 2011, section 2(a)(7). 2012 . Accessed Web. Feb 24 2017

[2] Medical Malpractice Liability Insurance in Vermont, Vermont Medical Malpractice Study Committee (VMMSC), 2005

[3] 12 V.S.A. § 1908

[4] 12 V.S.A. § 521

[5] 12 V.S.A. § 1909

[6] 12 V.S.A. § 1036

[7] 12 V.S.A. § 5601

[8] 12 V.S.A. § 7002

[9] 12 V.S.A. § 1042.

[10] Lockwood v. Lord, 163 Vt. 210, 213 (1994)

[11] Utzler v. Medical Center Hospital of Vermont, 149 Vt. 126, 127 (1987)