Expert opinion, “I think more likely than not [plaintiff] would have wound up with a better result,” is sufficient to preclude summary judgment in medical malpractice suit.

Tillson v. Lane, 2015 VT 121 [10/09/2015]

REIBER, C.J. Plaintiffs appeal from a decision granting defendants’ motion for summary judgment in a medical malpractice suit. The court based its decision on its determination that plaintiff’s expert testimony amounted to “loss-of-chance” evidence insufficient to prove that plaintiff’s injury was caused by defendants’ departure from the standard of care. We reverse and remand.

Defendant performed an elective procedure to remove a cataract in plaintiff’s left eye. Plaintiff alleged that within twenty-four hours of surgery, his left eye showed signs of infection. Within forty-eight hours of surgery, plaintiff was permanently blind in his left eye. Plaintiff alleged that Defendant should have consulted with a retinologist. Plaintiff’s expert testified at deposition that if plaintiff had undergone a vitrectomy and received antibiotics, “[h]e would have had a real chance versus no real chance of saving the sight in that eye.” In response to a clarifying question from plaintiff’s counsel, the expert stated, “I think more likely than not [plaintiff] would have wound up with a better result.”

In Smith v. Parrott, 2003 VT 64 we rejected the loss-of-chance doctrine as “fundamentally at odds with the settled common law standard . . . for establishing a causal link between the plaintiff’s injury and the defendant’s tortious conduct.” Id. ¶ 12 The elements of a medical malpractice action, “have traditionally included a requirement that the plaintiff adduce evidence of a reasonable probability or reasonable degree of medical certainty that the defendant’s conduct caused the injury.” Smith, 2003 VT 64, ¶ 11 (quotations omitted).

In Smith the patient relied upon statements from an expert witness who testified at deposition that an earlier consultation with a neurosurgeon might have yielded a “fifty-fifty chance of some recovery.” Unlike the expert in Smith, plaintiff’s expert ultimately testified that “more likely than not [plaintiff] would have wound up with a better result.” Reading the testimony in its entirety, plaintiff’s expert rendered the expert opinion that there was at least a fifty-one percent chance that plaintiff would have had some meaningful degree of vision in his left eye if he had received a timely referral to a retinologist. Although conflicting evidence exists, this is not a Smith opinion.

In other words, a factual assertion exists in the case that but for Defendant’s departure from the standard of care exercised by a reasonably skillful ophtalmologist, plaintiff would not have suffered an injury. Thus, the deposition testimony is sufficient evidence to withstand a motion for summary judgment.