SCOVT dismisses medical malpractice suit as untimely where no certificate of merit filed within the statute of limitiations.

McClellan v Haddock, 2017 VT 13   

SKOGLUND, J. Plaintiff in this wrongful-death action appeals from a trial court judgment dismissing her complaint as untimely. Plaintiff contends the trial court erred in: (1) denying her motion to amend the complaint to include a certificate of merit; (2) declining to treat the motion to amend as a petition to extend the statute of limitations; and (3) dismissing a claim for personal injuries incurred during the decedent’s lifetime.

The statute requires the filing of a certificate of merit "simultaneously with the filing of the complaint." 12 V.S.A. § 1042(a). The overarching purpose of the statute is to protect defendants from the burden of defending medical malpractice claims lacking in expert support. Denial of amendmand and dismissal of a complaint filed without the requisite certificate of merit attesting to such support is essential to effectuate that purpose.

Section 1042(d) provides that, "[u]pon petition to the clerk of the court where the civil action will be filed, an automatic ninety-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by this section." The trial court here could not have granted a ninety-day extension of a statute of limitation that had already expired when the motion to amend was filed.

We affirm.

REIBER, C.J., dissenting. The outcome in this case is not mandated by the statutory language or its purpose. The certificate-of-merit requirement is to provide a mechanism to easily identify and dismiss baseless malpractice claims against health providers. The statute recognizes, however, that plaintiffs with legitimate claims may require extra time to comply with this requirement and provides for an automatic ninety-day extension. Plaintiff’s motion to amend the complaint should have been treated as such a request and allowed to go forward. Precluding plaintiff from doing so does not forward the goal of ferreting out unmerited claims and is inconsistent with this state’s preference of deciding cases on their merits and preserving the constitutional right of access to the courts. Moreover, under our liberal pleading rules, plaintiff adequately pleaded claims for injuries occurring prior to the statutory effective date that were not subject to the certificate-of-merit requirement. For these reasons, I would reverse and dissent from the majority’s affirmance of the dismissal.


SCOVT NOTE. See Quinlan v. Five-Town Health Alliance, Inc., 2018 VT 53 (reaffirming McClellan and requiring strict compliance)