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 The Law of Medical Malpractice in Vermont: A Survey of Basic Considerations

Vermont medical malpractice law is among the most complex legal practice areas. The statutes, case law, and regulations governing medical malpractice law in Vermont are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Vermont exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Vermont by both members of the general public as well as practicing lawyers. This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.
This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Vermont medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both nonlawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in Vermont. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through XI examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Vermont.

Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts
-What is Medical Malpractice in Vermont?
-Required Elements of a Medical Malpractice Claim in Vermont
-Introduction
-The Basic Elements
II. Filing Deadlines for Medical Malpractice Claims
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in Vermont
-The Discovery Rule
-Introduction
-The Discovery Rule in Vermont
-Special Provisions
-Minors
-Incapacity
-Fraudulent Concealment and Foreign Objects
-Final Thoughts
III. Statute of Repose—Absolute Bar to Recovery
-Introduction
-Statute of Repose in Vermont
IV. Immunities and Limitations on Liability
-Sovereign Immunity
-Introduction
-Sovereign Immunity in Vermont
-Claims against the State
-Claims against Political Subdivisions
-Additional Immunities and Limitations on Liability
V. Certificate of Merit
VI. Required Elements of a Medical Malpractice Complaint
-Basic Elements
-Notice Pleading
VII. Expert Medical Witnesses
-Introduction
-Who Qualifies as An Expert Medical Witness
-Admissibility of Expert Testimony
-Introduction
-Admissibility of Expert Testimony in Vermont
VIII. Comparative Negligence
-Modified Comparative Negligence with 51% Bar Rule
-Apportionment of Fault with Multiple Defendants
IX. Limitation on Damages
X. Limitations on Attorney Fees
-Contingent Fee Arrangement
-Limitations on Attorney Fees in Vermont
XI. Apologies and Gestures of Sympathy
XII. Website Disclaimer

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in Vermont?

Medical malpractice is a specific type of professional negligence by a healthcare provider.  In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice.  When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

Required Elements of a Medical Malpractice Claim in Vermont

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Vermont law.  Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation.  Some degree of risk is inherent in most medical procedures.  The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment.  The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment.  While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

Vermont medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury.  The negligence must be the actual cause in fact of the patient’s injury.  The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior.  That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The Basic Elements

The basic elements of a compensable medical malpractice claim that must all be proven by the plaintiff are codified in Title 12 Vermont Statutes Annotated (“VSA”) § 1908, which states:

[T]he plaintiff shall have the burden of proving:

  • The degree of knowledge or skill possessed or the degree of care ordinarily exercised by a reasonably skillful, careful, and prudent health care professional engaged in a similar practice under the same or similar circumstances whether or not within the State of Vermont;
  • That the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and
  • That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

The statute essentially codifies the elements required by the Vermont Supreme Court for a medical malpractice claim. The Supreme Court explained as follows:

The burden is on the plaintiff in a medical malpractice action to prove both that the defendant physician was negligent and that the plaintiff’s injuries were proximately caused by that negligent conduct.  Normally this burden is only satisfied when the plaintiff produces expert medical testimony setting forth: (1) the proper standard of medical skill and care; (2) that the defendant’s conduct departed from that standard; and (3) that this conduct was the proximate cause of the harm complained of.  An exception to this general rule exists in cases where the violation of the standard of medical care is so apparent to be comprehensible to the lay trier of fact. [internal citations and quotation marks omitted] Senesac v. Associates in Obstetrics and Gynecology, 449 A.2d 900, 902 (Vt. 1982).

The general rule is that the elements of a medical malpractice claim must all be established through expert witness testimony.  Begin v. Richmond, 555 A.2d 363, 365 (Vt. 1988).  The rationale for the expert witness requirement is that medical treatments are “not easily evaluated by a lay person” and thus are beyond their common knowledge and experience.  Senesac, 449 A.2d at 902.

However, the Vermont Supreme Court has carved out an exception to the expert witness requirement.  Such testimony is not required “where the alleged violation of the standard of care is so apparent that it may be understood by a lay trier of fact without the aid of an expert.”  Larson v. Candlish, 480 A.2d 417, 418 (Vt. 1984).  Classic examples of situations that are considered within the common knowledge of lay jurors is when the wrong limb is amputated (left leg instead of right) and where a foreign object with no remaining therapeutic value is inadvertently left inside a patient following surgery.  In these types of scenarios, laypeople can draw upon their own common knowledge and experience to conclude that the defendant was negligent without the need for an expert to tell them so.

With respect to the causation element of a medical malpractice claim, the Vermont Supreme Court reaffirmed the common law and statutory principle that in medical malpractice actions “the plaintiff must prove that as a result of the defendant’s conduct the injuries ‘would not otherwise have been incurred,’ and therefore and act or omission of the defendant cannot be considered a cause of the plaintiff’s injury if the injury would probably have occurred without it.”  Wilkins v. Lamoille County Mental Health Services, Inc., 889 A.2d 245, 249 (Vt. 2005).  The traditional standard utilized by the Supreme Court holds that the plaintiff produce evidence “of a likelihood, or a greater than fifty percent chance” that the defendant’s negligence caused the complained of injury to the plaintiff.  Smith v. Parrott, 833 A.2d 843, 845 (Vt. 2003).

II. Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case.  In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations.  Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard.  In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended.  Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period.  For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time.  The deadline to carry out a specified action under a statute of limitations can also be extended.  For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in Vermont

The statute of limitations for medical malpractice claims is set forth in 12 VSA § 521.  The standard rule is that medical malpractice claims must “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, whichever occurs later….”  Id.

The standard period in which a plaintiff must commence an action for medical malpractice is three years from the date of the alleged negligent act or omission.  The two-year period referenced in the statute is the Discovery Rule, which is discussed in the next Subsection of this article.

It is often the case that a single day is the difference between whether a plaintiff may commence an action or is time-barred because the limitations period has expired.  Miscalculating when the last day of the limitations period is can literally result in an injured patient, even with a meritorious claim, being denied the chance at any recovery.  As such, it is critical to understand how time is computed under Vermont law in calculating the exact date the applicable limitations period ends.  Rule 6 of the Vermont Rules of Civil Procedure sets forth how time is calculated under Vermont law.  It instructs:

In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included.  The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a State or federal legal holiday, or, when the act to be done is the filing of a document in court, a day on which weather or other conditions have made the office of the clerk inaccessible or the court’s electronic filing system is unavailable, in which event the period runs until the end of the next day which is not one of the aforementioned days.  Intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation, when the period of time prescribed or allowed, not including any calendar days added in accordance with subdivision (e) of this rule, is less than 11 days.

Once the date of accrual of a medical malpractice claim in known, the exact date the three-year limitations period ends can easily be calculated by applying the foregoing rules for the computation of time.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule.  In general, the Discovery Rule is an exception to the standard statute of limitations.  It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff.  Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision.  The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in Vermont

Vermont recognizes the Discovery Rule.  It is codified in 12 VSA § 521.  The language in the statute that states medical malpractice claims must “be brought within … two years from the date the injury is or reasonably should have been discovered” constitutes the Discovery Rule.

The question of when an injury was or reasonably should have been discovered is a question of fact to be determined by the jury.  Lillicrap v. Martin, 591 A.2d 41, 44 (Vt. 1989).  The statute does not answer the question of what constitutes discovery of the injury for purposes of triggering the running of the two-year limitations period.  There are two possibilities: (1) when the injury is discovered—injury only or (2) when the injury is discovered together with its cause—injury and medical cause.  The Vermont Supreme Court held in favor of the latter possibility as the triggering event for the running of the two-year Discovery Rule limitations period.  Id.   The Court explained:

[T]he clear trend among the courts of the nation is to hold that the statute does not commence to run until the plaintiff has discovered his “legal injury,” such that the statute begins to run only when the plaintiff has or should have discovered both the injury and the fact that it may have been caused by the defendant’s negligence or other breach of duty.  Indeed, the United States District Court for the District of Vermont has predicted that we would construe our statute so as to “begin the running of the statute of limitations only when a plaintiff discovers or reasonably should discover the injury, its cause, and the existence of a cause of action.”  Today, we join the majority of courts which have recently addressed this issue and so hold. [internal citations omitted] Id. at 46-47.

Accordingly, the two-year limitations period under the Discovery Rule begins to run when the plaintiff discovers the injury, its cause, and the existence of a cause of action.  It is a question of fact for the jury to determine on what date that occurred.

Special Provisions

Minors

Minors are subject to a different limitations period than the standard period that normally applies to medical malpractice claims.  12 VSA § 551 provides that if the plaintiff is a minor at the time the claim accrues the statute of limitations is tolled until the disability is removed, i.e., reaches the age of 18.  Once the plaintiff turns 18, a claim must be filed in accordance with the provisions of 12 VSA § 521Id.

Incapacity

Individuals who lack capacity to protect their interests “due to a mental condition or psychiatric disability” are subject to a different limitations period than the standard period that normally applies to medical malpractice claims.  12 VSA § 551 provides that if the plaintiff lacks capacity to protect his or her interests, a claim must be filed in accordance with the provisions of 12 VSA § 521 once the disability is removed.

Fraudulent Concealment and Foreign Objects

The statute of limitations will not bar a medical malpractice claim “where fraudulent concealment has prevented the patient’s discovery of the negligence.”  12 VSA § 521.

With respect to a foreign object left within the body, 12 VSA § 521 states: “Where the action is based upon the discovery of a foreign object in the patient’s body, which is not discovered within the period of limitation under this section, the action may be commenced within two years of the date of the discovery of the foreign object.”

Final Thoughts

The application of Vermont’s medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven.  The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced Vermont medical malpractice attorney.  The matter becomes even more complicated when the statute of repose is implicated (see next Section of this article for discussion).  In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact a Vermont attorney who specializes in medical malpractice law at the earliest possible opportunity.

III. Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations.  Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed.  If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them.  The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes.  A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued.  In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury.  The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued.  Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists.  A statute of repose serves as an absolute bar to recovery.  Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations.  The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose.  In fact, even many practicing lawyers do not fully appreciate the critical differences between the two.  This is likely due to the fact that statutes of repose are relatively rare.  Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in Vermont

Vermont has a seven-year statute of repose applicable to medical malpractice claims codified in 12 VSA § 521.  Lillicrap v. Martin, 591 A.2d 41, 47 (Vt. 1989).  The statute states that no medical malpractice action may be brought “later than seven years from the date of the incident.”  12 VSA § 521.  The Vermont Supreme Court instructed that the statute of repose, however, does not apply to cases “where fraudulent concealment has prevented the patient’s discovery of the negligence” or where “the action is based upon the discovery of a foreign object in the patient’s body.”  Lillicrap, 591 A.2d at 50 n.1 (quoting 12 VSA § 521).

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them.  The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong.  As a result, there could be no valid claim against a government entity.  The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state.  Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Vermont

Claims against the State

The State of Vermont has waived sovereign immunity to the extent provided for in the Vermont Tort Claims Act, 12 VSA §§ 5601-5606LaShay v. Department of Social and Rehabilitation Services, 625 A.2d 224, 228 (Vt. 1993).  According to 12 VSA § 5601, the liability of the State is as follows:

The State of Vermont shall be liable for injury to persons or property or loss of life caused by the negligent or wrongful act or omission of an employee of the State while acting within the scope of employment, under the same circumstances, in the same manner and to the same extent as a private person would be liable to the claimant except that the claimant shall not have the right to levy execution on any property of the State to satisfy any judgment.  The Superior Courts of the State shall have exclusive jurisdiction of any actions brought hereunder.

The statute imposes a limit on recoverable damages in the amount of “$500,000 to any one person and the maximum aggregate liability shall be $2,000,000 to all persons arising out of each occurrence.”  12 VSA § 5601(b).  The damage caps are effective as of July 1, 2011.  Id.

Claims against Political Subdivisions

When municipal corporations and counties purchase liability insurance in accordance with the applicable statute, they waive their sovereign immunity from liability to the to the extent of the coverage of the policy and consent to be sued.  29 VSA § 1403.  In any action against a municipal corporation or county, “a judgment shall not be rendered against a municipal corporation or county for more than the maximum amount of liability insurance carried by it and applicable to the subject matter of the action.”  29 VSA § 1404.

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the Vermont Statutes Annotated.  Many of the statutes medical malpractice plaintiffs are most likely to encounter are contained in Title 12—Court Procedure.

V. Certificate of Merit

Vermont law requires a Certificate of Merit to be filed with the complaint in medical malpractice actions.  12 VSA § 1042.  It provides:

No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after February 1, 2013, in which it is alleged that such injury or death 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.

Basically, a Certificate of Merit is a mechanism to help prevent the filing of frivolous lawsuits.  It requires that a qualified expert certify that the plaintiff has a reasonable likelihood of success on the medical malpractice claim.  The statute requires the following:

In the certificate of merit, the attorney or plaintiff shall certify that he or she has consulted with a health care provider qualified pursuant to the requirements of Rule 702 of the Vermont Rules of Evidence [that is, an individual who qualifies as an expert witness] and any other applicable standard, and that, based on the information reasonably available at the time the opinion is rendered, the health care provider has:

  • described the applicable standard of care;
  • indicated that based on reasonably available evidence, there is a reasonable likelihood that the plaintiff will be able to show that the defendant failed to meet that standard of care; and
  • indicated 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 cause the plaintiff’s injury.

The Vermont Supreme Court added:

The statute provides further that “failure to file the certificate of merit as required by this section shall be 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.”  Id. § 1042(e).  There is also a savings clause in the statute for claims that may expire before acquiring the necessary expert opinion: “Upon petition to the clerk of the court where the civil action will be filed, an automatic 90-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by this section.”  Id. § 1042(d).  McClellan v. Haddock, 2017 VT 13, ¶3 (2017).

In McClellan, the Supreme Court had to answer the question of whether “a medical malpractice complaint may be amended to supple a certificate of merit wholly omitted when the complaint was filed.”  Id. at ¶ 16.  The Court answered the question in the negative, concluding that “permitting such an amendment would be fundamentally inconsistent with the statutory purpose.”  Id.

VI. Required Elements of a Medical Malpractice Complaint

Basic Elements

In Vermont, there is only one recognized form of action, and it is known as a “civil action.”  Rule 2 of the Vermont Rules of Civil Procedure.

According to Rule 3, a “civil action is commenced by filing a complaint with the court….”  Basically, a complaint is a document that contains a short statement of the facts describing the plaintiff’s claim that entitles the plaintiff to relief and a demand for judgment granting that relief.  A complaint is one of the authorized types of pleadings provided for in Rule 7(a).

Under Rule 8(e)(1), each allegation in a complaint must “be simple, concise, and direct.  No technical forms of pleading or motions are required.”  The complaint may:

set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses.  When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements.  A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal, or on equitable grounds, or on both.  Rule 8(e)(2).

The complaint “shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks.  Relief in the alternative or of several different types may be demanded.”  Rule 8(a).  According to Rule 8(f), complaints “shall be so construed as to do substantial justice.”

Rule 10(a) provides that:

Every pleading shall contain a caption setting forth the name of the court and county or territorial unit and circuit, the title of the action, the docket number, and a designation as [a complaint]. In the complaint, the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. The complaint shall be dated.

Allegations contained in the complaint “shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances….”  Rule 10(b).

The complaint “shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party.  Each document shall state the signer’s e-mail and postal address.”  Rule 11(a).

Notice Pleading

Vermont is a notice pleading state.  Bock v. Gold, 959 A.2d 990, 992 (Vt. 2008).  The Vermont Supreme Court explained that “the threshold a plaintiff must cross in order to meet out notice-pleading standard is ‘exceedingly low.’”  Id. (quoting Henniger v. Pinellas County, 7 F.Supp.2d 1334, 1336 (M.D. Fla 1998).  The Court stated that Vermont has an “extremely liberal notice-pleading standard, which requires the court to take as true all of the alleged facts in a cause of action.”  Mahoney v. TARA, LLC, 107 A.3d 887, 893 (Vt. 2014).  The Court instructed that under the state’s notice pleading standard a specific and detailed statement of the facts that constitute the cause of action is not required; only a simple statement clear enough to provide the defendant with fair notice of what the claim is and its basis is all that is required.  Id.

Fact pleading is the other (less common) system of pleading.  For example, Oregon is a fact (or code) pleading state.  Davis v. Tyee Industries, Inc., 668 P.2d 1186, 1193 (Or. 1983).  According to the Oregon Supreme Court, “Oregon has been a code pleading state since statehood.  The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought.  This rule has been carried forward in the Oregon Rules of Civil Procedure” in Rule 18(A).  Id. at 1191-1192.  Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms.

The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.

VII. Expert Medical Witnesses

Introduction

The general rule under medical malpractice law holds that expert witnesses are nearly always required.  The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses.  As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization.  Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

Who Qualifies as An Expert Medical Witness

The starting point in determining whether a potential expert witness is qualified to provide opinion testimony in a medical malpractice case is Rule 702 of the Vermont Rules of Evidence, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

According to Rule 702, a prospective witness can qualify as an expert based on his or her “knowledge, skill, experience, training, or education.”  The Vermont Supreme Court instructed: “The question of competency of an expert witness is a preliminary one for the trial court to determine in its sound discretion, and the court’s action is not revisable on appeal unless it appears from the evidence to be erroneous or founded upon an error of law.”  Alling Construction Co., Inc. v. Bissette, 318 A.2d 666, 668 (Vt. 1974).  The trial court has wide discretion in determining whether a prospective expert witness is qualified to offer testimony.  The Supreme Court stated that it “is not the role of the reviewing court to second guess or displace the trial court’s decision with its own; rather, it will reverse only when it determines that the trial court acted arbitrarily and capriciously.”  South Burling School District v. Calcagni-Frazier-Zajchowski Architects, Inc., 410 A.2d 1359, 1368 (Vt. 1980).

The Vermont Supreme Court does not require that a prospective expert witness hold the same title or degree as the defendant in order to be qualified to provide witness testimony against the defendant.  State v. White, 451 A.2d 1137, 1139 (Vt. 1982).

Admissibility of Expert Testimony

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries.  Simply put, courts must guard against allowing so-called junk science into evidence.  To achieve that objective, most states[1] follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”  Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle.  The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Expert Testimony in Vermont

The starting point in determining whether expert witness testimony in a medical malpractice case is admissible is Rule 702 of the Vermont Rules of Evidence, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The Vermont Supreme Court stated: “This rule is intended to create ‘a flexible standard requiring only that expert testimony be both relevant and reliable to be admissible.’”  Estate of George v. Vermont League of Cities and Towns, 993 A.2d 367, 372 (Vt. 2010) (quoting 985 Associates, Ltd. v. Daewoo Electronics America, Inc., 945 A.2d 381, 383 (Vt. 2008)).

Vermont has adopted the Daubert standard in determining the admissibility of expert witness testimony.  Daewoo, 945 A.2d at 384.  According to the Vermont Supreme Court, “[f]ollowing Daubert and our adoption of its analysis, trial judges in Vermont must now act as gatekeepers who screen expert testimony ensuring that it is reliable and helpful to the issue at hand before the jury hears it.” [internal quotation marks omitted] Id.  The Vermont Supreme Court explained its position on the Daubert standard and admissibility of expert witness testimony as follows:

[W]e review trial court decisions on the admissibility of expert testimony only for abuse of discretion.  The trial courts must have flexibility in carrying out their gatekeeper functions, but we cannot allow our deferential standard of review to blind us to fundamental misapplications of the Daubert analysis. We adopted the Daubert decision precisely because it comported with the “liberal thrust” of the rules of evidence and broadened the types of expert opinion evidence that could be considered by the jury at trial.

Given the “general approach [of the rules of evidence] of relaxing the traditional barriers to ‘opinion’ testimony,” the trial court’s inquiry into expert testimony should primarily focus on excluding “junk science” — because of its potential to confuse or mislead the trier of fact — rather than serving as a preliminary inquiry into the merits of the case….

As we have noted, “there are no certainties in science.”  So long as scientific or technical evidence has a sound factual and methodological basis and is relevant to the issues at hand, it is within the purview of the trier of fact to assess its credibility and determine the weight to be assigned to it.  [internal citations omitted] Id. at 384-385, 387.

VIII. Comparative Negligence

Modified Comparative Negligence with 51% Bar Rule

By statute, Vermont uses modified comparative negligence with a 51% bar rule.  12 VSA § 1036.  The statute provides that a plaintiff’s contributory negligence does not bar recovery, stating:

Contributory negligence shall not bar recovery in an action by any plaintiff, or his or her legal representative, to recover damages for negligence resulting in death, personal injury or property damage, if the negligence was not greater than the causal total negligence of the defendant or defendants, but the damage shall be diminished by general verdict in proportion to the amount of negligence attributed to the plaintiff.  Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his or her causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed.

Notice that the plaintiff may recover damages so long as his or her proportionate share of negligence is not greater than the defendant or defendants being sued by the plaintiff—the 51% bar rule.  If the plaintiff’s percentage share of determined fault is greater than the total of the defendant or defendants, then the plaintiff is not entitled to any recovery.

In Stannard v. Harris, 380 A.2d 101, 103 (Vt. 1997), the Vermont Supreme Court discussed the state’s comparative negligence statute as follows:

This statute drastically changed our law of negligence, as it overturned the harsh doctrine of contributory negligence which barred recovery if a plaintiff’s negligence contributed to his injury even in the slightest degree….  Pointing out that comparative negligence statutes in the main are the result of the legislative rather than the judicial process, Justice Larrow categorized our statute as a political compromise between pure comparative and contributory negligence in that it retains contributory negligence as a bar to recovery only where it exceeds 50% of the total causal negligence.

Under contributory negligence (the doctrine that Vermont followed prior to implementing the current doctrine of modified comparative negligence), a plaintiff is completely barred from any recovery if his or her negligent conduct contributed as a legal cause in any degree to the injury.  Contributory negligence is extremely unforgiven.  If the plaintiff’s own negligence contributed to the injury in the slightest degree, i.e., even 1%, he or she cannot recover any damages.  It is for this reason that nearly every state has abandoned it.  Only Alabama, Maryland, North Carolina, and Virginia still permit the use of contributory negligence.

To underscore the point, assume that a plaintiff is 10% at fault for contributing to his or her own injuries with the defendant 90% at fault, and the damage award is $1 million.  Under comparative negligence, the plaintiff will still recover $900,000 ($1 million less 10% or $100,000 attributable to his or her allocated share of fault).  That is the result for under Vermont’s current doctrine of modified comparative negligence.  In contrast, under contributory negligence, the plaintiff recovers nothing.  The plaintiff’s 10% allocation of fault serves as a complete bar to recovery.  That is the stark difference between the two doctrines.

Comparative negligence is a fault and damages allocation system.  Under Vermont’s version, fault is determined and apportioned among the plaintiff and all defendants to the action, and how much compensation the plaintiff may recover is limited by his or her allocated relative share of fault for causing the injury.  12 VSA § 1036.  Fault is determined and apportioned among the plaintiff and all defendants, and the amount of damages the plaintiff can recover is limited by his or her relative share of fault.  Id.  The statute provides that “the damage shall be diminished by general verdict in proportion to the amount of negligence attributed to the plaintiff.”  Id.

For example, assume a plaintiff is determined to be 25% at fault, and the damage award is $100,000.  The amount to which the plaintiff is entitled is $75,000 because the plaintiff’s allocated percentage share of fault, i.e., 25% or $25,000, is deducted from the damage award.  If the plaintiff were determined to be 51% or more at fault, he or she would not be entitled to any recovery because Vermont imposes the 51% bar rule.

Apportionment of Fault with Multiple Defendants

When multiple defendants are involved, there are two different ways in which the degree of fault comparison can be applied.  Each approach can lead to vastly different results.  The individual comparison approach compares the plaintiff’s proportion of fault against each defendant individually, and the plaintiff may recover damages against only the defendants whose individual proportion of fault is greater than the plaintiff’s.  For example, in a scenario where the plaintiff is deemed to be 40% at fault and two defendants are each apportioned 30% of the fault, the plaintiff is barred from any recovery.  Under the individual comparison approach, the plaintiff’s share of fault for the injury is greater than either defendant individually.

On the other hand, the combined comparison approach permits the plaintiff to recover as long as his or her apportioned share of negligence is equal to or less than the combined negligence of all the defendants against whom recovery is sought.  In the above example, the plaintiff would be entitled to recover damages from both defendants since his or her apportioned share of negligence is less than the combined share of the two defendants.  Clearly, there is a stark contrast in the results of the two approaches with plaintiffs obviously favoring the combined comparison approach.

It appears that Vermont utilizes the combined comparison approach.  In 1977, the Vermont Supreme Court first addressed this question in Stannard.  At the time of the decision, the comparative negligence statute read: “Contributory negligence shall not bar recovery … if the negligence [of the plaintiff] was not greater than the causal negligence of the defendant.” [emphasis supplied] Stannard, 380 A.2d at 104.  Because the statute used only the singular of the term ‘defendant,’ the Court concluded:

By its choice of the word “defendant” in the singular, the Legislature plainly intended to require an individual comparison with each defendant and to bar recovery if plaintiff’s negligence is greater than that of each individual defendant. We find no compelling reason advanced by plaintiff to overturn this legislative determination by judicial fiat.  If there is a need for change, that question is properly addressed to the legislative body.

The Legislature accepted the Supreme Court’s invitation to address the matter.  In 1980, the Legislature amended 12 VSA § 1036 by changing the language to read: “if the negligence was not greater than the causal total negligence of the defendant or defendants.”  With the inclusion of the term ‘defendants,’ it appears that the Legislature expressed its intent that the combined comparison approach is the law in Vermont since it directly addressed the rationale upon which the Supreme Court ruled in favor of the individual comparison approach in Stannard.  Accordingly, it would appear very likely that the combined comparison approach is the current law in the state.  But as a word of caution, the Supreme Court has not been called upon to address this question since the statute was amended in 1980.

IX. Limitation on Damages

Vermont does not impose a statutory cap on economic or noneconomic damages in medical malpractice cases

X. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases.  That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award.  If there is no recovery, then the attorney does not receive any payment as a legal fee.  Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources.  Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option.  Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive.  Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee.  Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions.  Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in Vermont

Vermont law does not impose any generally applicable caps on attorney fees specific to medical malpractice cases.  However, there is an important limitation on fees designed to protect all clients of which plaintiffs with a medical malpractice claim should be aware.

In general, attorney fees in medical malpractice cases are subject to the reasonableness standard that governs all fee arrangements in Vermont under Rule 1.5 of the Vermont Rules of Professional Conduct.  Rule 1.5(a) states:

A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.  The factors to be considered in determining the reasonableness of a fee include the following:

  • the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
  • the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
  • the fee customarily charged in the locality for similar legal services;
  • the amount involved and the results obtained;
  • the time limitations imposed by the client or by the circumstances;
  • the nature and length of the professional relationship with the client;
  • the experience, reputation, and ability of the lawyer or lawyers performing the services; and
  • whether the fee is fixed or contingent.

Comment 1 to Rule 1.5 states that the eight factors listed “are not exclusive.  Nor will each factor be relevant in each instance.”

Under the Rules, contingent fee arrangements are permissible.  Comment 3 to Rule 1.5 provides that contingent fees:

[L]ike any other fees, are subject to the reasonableness standard of paragraph (a) of this rule.  In determining whether a particular contingent fee is reasonable, or whether it is reasonable to charge any form of contingent fee, a lawyer must consider the factors that are relevant under the circumstances.  Applicable law may impose limitations on contingent fees, such as a ceiling on the percentage allowable, or may require a lawyer to offer clients an alternative basis for the fee. Applicable law also may apply to situations other than a contingent fee, for example, government regulations regarding fees in certain tax matters.

Comment 2 to Rule 1.5 states:

In a new client-lawyer relationship, however, an understanding as to fees and expenses must be promptly established.  Generally, it is desirable to furnish the client with at least a simple memorandum or copy of the lawyer’s customary fee arrangements that states the general nature of the legal services to be provided, the basis, rate or total amount of the fee and whether and to what extent the client will be responsible for any costs, expenses or disbursements in the course of the representation.  A written statement concerning the terms of the engagement reduces the possibility of misunderstanding.

XI. Apologies and Gestures of Sympathy

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit.  This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

Vermont is among the states that have enacted an “I’m Sorry” law.  It is contained in 12 VSA § 1912 and is specific to healthcare providers.  The statute shields healthcare providers who communicate oral statements of regret or apology by providing that such expressions do not constitute a legal admission and making them inadmissible in any civil or administrative proceeding against the healthcare provider.  The statute states:

An oral expression of regret or apology, including any oral good faith explanation of how a medical error occurred, made by or on behalf of a health care provider or health care facility, that is provided within 30 days of when the provider or facility knew or should have known of the consequences of the error, does not constitute a legal admission of liability for any purpose and shall be inadmissible in any civil or administrative proceeding against the health care provider or health care facility, including any arbitration or mediation proceeding.  12 VSA § 1912(a).

There are a couple of provisions that should be pointed out.  Notice that the statute only covers oral expressions, not written, and it must be communicated within 30 days of when the healthcare provider “knew or should have known of the consequences of the error.”

In addition, expressions of regret or apology cannot be examined by deposition or otherwise.  12 VSA § 1912(b).  According to the statute:

In any civil or administrative proceeding against a health care provider or health care facility, including any arbitration or mediation proceeding, the health care provider, health care facility, or any other person who makes an oral expression of regret or apology, including any oral good faith explanation of how a medical error occurred, on behalf of the provider or facility, that is provided within 30 days of when the provider or facility knew or should have known of the consequences of the potential adverse outcome, may not be examined by deposition or otherwise with respect to the expression of regret, apology, or explanation.

The protections provided by the statute with respect to expressions of regret or apology by healthcare providers “shall apply only to medical errors that occur on or after July 1, 2006.  12 VSA § 1912(e).

Although expressions of apology or sympathy may not be used as an admission of liability or otherwise as evidence, experienced medical malpractice lawyers in Vermont understand that they can still be useful to potential plaintiffs.  Lawyers point out that receiving such an expression of apology or sympathy may alert the potential plaintiff that an error was made by a healthcare provider.  While the expression itself cannot be used against the healthcare provider in a civil action, it can serve as the trigger for the need to investigate the circumstances surrounding the plaintiff’s injury by contacting an experience medical malpractice lawyer.

XII. Website Disclaimer

This website has been prepared by Medical Malpractice Help for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

The information contained in this website is provided only as general information, which may or may not reflect the most current legal developments. This website occasionally contains links to other web pages. The inclusion of such links, however, does not constitute referrals or endorsements of the linked entities. Newsome Melton specifically disclaims any responsibility for positions taken by users in their individual cases or for any misunderstanding on the part of users of this website or any linked websites.

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[1] In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard.  For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.