The Vermont Supreme Court affirmed the dismissal of a Vermont lawsuit arising out of the suicide of an inmate in the custody of the Vermont Department of Corrections, holding: “It is undisputed that plaintiff failed to file a COM [certificate of merit required in medical malpractice claims] simultaneously with her complaint as required by § 1042(a) and thus dismissal is required unless the exception applies. In determining the applicability of the exception, we consider two questions: (1) whether it must be apparent from the face of a plaintiff’s complaint that the exception applies; and if so, (2) whether plaintiff’s complaint satisfies this requirement. We conclude that the court is limited to the allegations in an initial complaint in determining if the exception applies and that plaintiff’s complaint does not present a “rare instance” in which expert testimony is unnecessary. Her medical malpractice claim must therefore be dismissed.”
In Vermont, a plaintiff cannot file a civil action to recover damages for wrongful death if the death allegedly “resulted from the negligence of a health care provider, unless the attorney or party filing the action files a certificate of merit simultaneously with the filing of the complaint.” 12 V.S.A. § 1042(a). In the COM, the plaintiff or his or her attorney must certify that they consulted with a health care provider, the provider described the applicable standard of care, and the provider found it reasonably likely that the plaintiff could show that the standard of care was violated and that the violation led to the plaintiff’s injury. Failure to file a COM is grounds for dismissal of the action without prejudice, except in the rare instances in which a court determines that expert testimony is not required to establish a case for medical malpractice. § 1042(e). The plaintiff did not file a COM with her initial complaint in February 2019 although she separately requested to extend the statute of limitations to provide a COM until June 1, 2019. The trial court denied the extension request because it did not precede the filing of the complaint.
The defendants subsequently moved to dismiss the medical malpractice claim, citing plaintiff’s failure to file a COM simultaneously with her complaint. The trial court agreed that dismissal ordinarily would be required but questioned if this might be a “rare instance” in which expert testimony was not required. After obtaining additional briefing on this issue, the court denied the motion to dismiss because it could not determine from the face of the plaintiff’s complaint if the exception applied. The defendants subsequently filed an interlocutory appeal.
Vermont Supreme Court Opinion
The Vermont Supreme Court stated, “The simultaneous filing of a COM with a complaint is a statutory prerequisite for a medical-malpractice case to proceed beyond the complaint. It follows that applicability of the exception to the COM requirement must also be established at the time a complaint is filed and before discovery. That means the exception only applies where the violation of the standard of medical care is apparent to a layperson based on the allegations of the complaint alone … The trial court here did not find that this case presented a “rare instance” in which expert testimony was required. It therefore erred in allowing the claim to proceed.”
The Vermont Supreme Court concluded, “Whether individual defendants’ evaluations and treatment of Mr. Bittner constituted medical malpractice turns on the standard of care for mental health professionals treating individuals with depression and suicidal ideation, which are not matters of common knowledge and experience. This is equally true of the causal link between defendants’ alleged violations of the standard of care and Mr. Bittner’s suicide … this case does not involve the mere failure to “alert” Mr. Bittner’s new custodians about his mental health. It involves “complicated medical issues.” Id. As discussed above, a layperson would have no way to know what a mental health alert is, why it was needed under the circumstances of this case, and how its omission proximately caused Mr. Bittner’s suicide thirteen days after his transfer. Because this is not a “rare instance” in which expert testimony is unnecessary and because no COM was filed simultaneously with the complaint, plaintiff’s medical malpractice claim must be dismissed.”
Source Bittner v. Centurion of Vermont, LLC, 2021 VT 73.
If you or a loved one may have been injured (or worse) as a result of medical negligence in Vermont or in another U.S. state, you should promptly find a Vermont medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your U.S. state who may assist you.
Turn to us when you don’t know where to turn.