SCOVT affirms denial of plaintiff’s motion for new trial in medical malpractice case, holding the court acted within its discretion in ruling the verdict was not against the weight of the evidence.

 

Watrous v. Porter Medical Center, 2025 VT 47 

COHEN, J.   Plaintiff Arthur G. Watrous, the administrator of the Estate of Arthur H. Watrous, appeals the denial of his motion for a new trial after a jury found for defendant Porter Medical Center on plaintiff’s claims of negligence and wrongful death by special verdict verdict form that asked, “Did [plaintiff] prove the standard of care?”  Plaintiff argues the trial court abused its discretion in denying him a new trial because the jury’s conclusion that plaintiff failed to prove the standard of care was against the weight of the evidence.  We affirm.

The sole issue in this case is whether the trial court abused its discretion in denying plaintiff’s motion for a new trial.

In denying plaintiff’s motion the court reasoned that the jury heard conflicting evidence regarding the components of a standard of care and there was no undisputed evidence regarding the specific standard of care applicable to decedent’s circumstances.

A trial court may only exercise its discretion to set aside the verdict if “the verdict is shown to be clearly wrong and unjust because the jury disregarded the reasonable and substantial evidence, or found against it, because of passion, prejudice, or some misconception of the matter.”  Pirdair v. Med. Ctr. Hosp. of Vt., 173 Vt. 411, 416, 2002) We give the trial court’s “all presumptive support similar to that owed the jury verdict.”  Id. We will hold a trial court abused its discretion only when “such discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.”  Weeks v. Burnor, 132 Vt. 603, 606 (1974).  

 

The parties presented conflicting evidence as to the proper standard of care. We agree with the trial court that the evidence of the applicable standard of care was not so clear that the jury erred in concluding that plaintiff had failed to establish that element.  The court acted within its discretion in denying a new trial given the state of the record. 

 

Affirmed.

How cited

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SCOVT NOTE. Cases reversing the denial of a motion for new trial based on the weight of the evidence of liability.

No Vermont medical malpractice case reverses the denial of plaintiff’s motion for new trial based on the weight of the evidence. The  Court in both  Chater v. Central Vermont Hospital, 155 Vt. 230 (1990) and Pirdair v. Medical Center. Hospital, 173 Vt 411 (2002) affirmed the denial of a plaintiff’s motion. In Lockwood v. Lord, 163 Vt. 210, (1994) the Court reversed the grant of plaintiff’s motion.

The standard of review from denial of the motion is strict. In substance, the reviewing court must affirm unless the moving party shows it is clearly entitled to judgment as a matter of law. Otherwise, there is a presumption in favor of the jury verdict. It has been decades since the Court in any type of case has affirmed the grant of a weight-of-the-evidence motion to a party with the burden of proof. Weeks v. Burnor, 132 Vt. 603, 609 (1974); Grow v. Wolcott, 123 Vt. 490 (1963)(divided court).[i] Apparently the only Vermont cases of any type that proport to reverse the denial of a plaintiff’s motion, as requested in Watrous v. Porter Medical Center, are AI hallucinations.

An important caveat is that the trial court must exercise discretion. It can be reversible error to deny a plaintiff’s motion for new trial “as a matter of law” where the motion calls for the exercise of discretion. Russell v. Pilger, 113 Vt. 537, 543–44 (1944) (“We have repeatedly held that when the trial court is properly called upon to exercise its discretion it must do so and to withhold it is error . . . It is error to rule, as the trial court did in this instance, as a matter of law upon a question which requires discretionary action.”); accord, Krupp v. State Highway Bd., 125 Vt. 25, 29 (1965)

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·         [i]  The Court has affirmed the grant of new trial to a plaintiff based on the insufficiency of evidence of a defense.  Blondin v. Milton Town School District, 2021 VT 2, ¶ 31 (affirming grant of  new trial  to plaintiff because it was error to instruct on comparative negligence.); McKenna v. May, 134 Vt. 145 (1976) (affirming grant of  new trial to plaintiff where by defendant’s own testimony he used more than necessary force in ejecting the plaintiff from his home).

 

Medical malpractice. Strict compliance with certificate-of -merit statute. Statute of limitations not tolled.

Quinlan v. Five-Town Health Alliance, Inc., 2018 VT 53 [5/18/2018]

SKOGLUND, J. This is a consolidated appeal involving two successive malpractice actions brought by the executor of a decedent’s estate against the clinic where the decedent received treatment prior to her death and against the physician assistant who treated her. The trial court dismissed the first action because plaintiff failed to file the certificate of merit required by 12 V.S.A. § 1042 with his complaint, and dismissed the second action as untimely. We conclude that the trial court properly dismissed both cases and therefore affirm.

Plaintiff contends that we should reverse because unlike the plaintiff in McClellan, he “substantially complied” with § 1042(a) by investigating the claim and providing defendants with an expert report that was equivalent to the certificate of merit prior to filing suit. We make explicit what we implicitly held in McClellan, namely, that § 1042’s requirement that a certificate of merit be filed simultaneously with the complaint is mandatory and demands strict compliance. When a certificate of merit is “entirely omitted from the original complaint,” dismissal is necessary to effectuate the statutory purpose of screening out frivolous claims at the outset. McClellan, 2017 VT 13, ¶ 25. Strict enforcement of the certificate of merit requirement and the statute of limitations does not offend the Common Benefits Clause.

We also reject plaintiff’s argument that dismissal for failure to file a certificate of merit is a dismissal for lack of subject matter jurisdiction, and therefore the statute of limitations was tolled by 12 V.S.A. § 558. Because the failure to file a certificate of merit does not divest the court of its general power to hear a medical malpractice action, 12 V.S.A. § 558 does not save plaintiff’s claim, and the trial court properly dismissed the second action.

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)

Jury tampering: trial court did not abuse discretion in concluding party’s assumed contact with juror during trial did not have capacity to affect verdict.

Labate v. Rutland Hospital, Inc., 2015 VT 128 [10/2/2015] 

EATON, J. This is an appeal of denial of a motion for new trial following a jury verdict in favor of defendants hospital and doctor in a case that claimed medical malpractice in connection with the birth of plaintiffs’ daughter. The jury found that the plaintiffs had failed to prove the standard of care applicable to each defendant. The motion for new trial claimed the verdict was tainted because a juror read an e-mail sent by the hospital to its employees during the trial.  On appeal, the plaintiffs assert that the court erred in concluding that the e-mail was incapable of influencing the jury’s verdict.  We affirm.

Whether an irregularity occurred is a question of fact for the trial court. “[T]he test is not whether the irregularity actually influenced the result, but whether it had the capability of prejudicing the verdict.” Bellows Falls Vill. Corp. v. State Highway Bd., 123 Vt. 408, 414, 190 A.2d 695, 699 (1963) (emphasis added).

Whether alleged juror misconduct has prejudiced the trial process is a matter for the discretion of the trial judge. In this case, the trial court suggested there was insufficient proof an irregularity had occurred and concluded that even if it had, the content of the e-mail was such that it could not have affected the verdict. Our review is, therefore, to determine whether the trial court has abused its discretion on the issue of capacity to affect the verdict.

Broadly construed, the e-mail asserted that the hospital “had done nothing wrong”—in other words, that they had met the applicable standard of care, whatever that may be. The email stated in part, “From time to time things go wrong. If we feel we are at fault, we will apologize, take corrective action and, if appropriate, reach a settlement with the other party. In this case we did not feel we did anything wrong. We did not feel the physician did anything wrong. Outside experts, our insurance company and our attorneys all concurred. In these cases we will allow the case to come to court and let a jury decide. We clearly believe in this case that something tragic happened and we feel terrible for the family. The world is not always fair. Bad things sometimes happen. It does not always mean someone is at fault.”

The trial court was correct that the e-mail was primarily a denial of any wrongdoing that did not have the capacity to affect the verdict.   The email contained no discussion of the standard of care required of either defendant. Because the e-mail contained nothing regarding the nature of the standard of care, it had no capacity to influence the jury on the questions on which they found a failure of proof, i.e., what constituted the standard of care in the first instance. Even if the irregularity had occurred, the court’s determination that it had no capacity to affect the verdict was not an abuse of discretion.

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.

Nursing negligence. Summary judgment for defense where plaintiff had no expert.

Taylor v. Fletcher Allen Health Care,  2012 VT 86 (Skoglund, J.) (Dooley, J., joined by Robinson, J., concurring and dissenting.)

Plaintiff Sally J. Taylor sued Fletcher Allen Health Care (FAHC) for medical negligence and negligent infliction of emotional distress, in connection with her medical care following a surgery. A nurse was assisting plaintiff in moving to the bathroom when plaintiff alleges that the nurse "withdrew support and assistance . . . unexpectedly and without warning and caused [p]laintiff to fall violently on to the toilet." After plaintiff failed to disclose any expert witness in response to discovery requests, FAHC moved for summary judgment, arguing that plaintiff’s claims failed as a matter of law without an expert witness.  The trial court granted FAHC’s motion.  We agree with the trial court that this case is sufficiently complex that plaintiff cannot prove her claims without expert testimony.  Accordingly, we affirm.

Whether a gait belt should have been used in this case or whether the use of a gait belt could have prevented her drop onto the toilet is beyond the ken of a layperson. There are countless variables that could explain the lack of a gait belt, and only testimony from an expert familiar with general nursing practices and the details of plaintiff's medical record would enable a jury to make an informed decision as to whether FAHC breached its duty of care by not using a gait belt in this case. ...Our holding here is limited to the unique facts of this case given the specificity of plaintiff's argument that the nurse failed to use a specific tool and technique and that the drop was the cause of the need for the second surgery. Those claims are outside of the experience of typical lay person's understanding.

Dooley, J., concurring and dissenting,  concurs in the dismissal of plaintiff's claims that FAHC was negligent in its failure to recognize and diagnose the problems with the hardware and in its treatment of the pain complaints as well as her claim for negligent infliction of emotional distress. I do not concur with the dismissal of the claim that FAHC was negligent when plaintiff fell while attended by a nurse. The majority unnecessarily transforms a routine hospital-fall case into a complex medical-malpractice action requiring expert evidence.

Medical malpractice. Psychiatrist who gave a single 90-minute consultation had a doctor-patient relationship and a duty of care, therefore summary judgment on issue of duty was error.

White  v. Harris,  2011 VT 115 (mem.)

  Plaintiffs appeal from a superior court order granting summary judgment to defendant Fletcher Allen Health Care, Inc. in this wrongful death action alleging medical malpractice.  The case arises from the suicide of plaintiffs’ fourteen-year-old daughter.  Plaintiffs sued defendant, which employed a psychiatrist who was briefly involved with decedent’s case through a telepsychiatry research study 10 months before her suicide.  Defendant moved for summary judgment asserting that its doctor had no duty to decedent when she committed suicide because there was no doctor-patient relationship.  Plaintiffs argue that summary judgment was improperly granted on the issue of the duty owed to decedent by the psychiatrist.  We agree, and thus reverse and remand for additional proceedings. 

The psychiatrist had no interaction with plaintiffs’ decedent or any member of her treatment team after a single, ninety-minute video-conference session with the psychiatrist in August 2006.  Following the session, the psychiatrist provided a diagnostic impression of decedent and set forth recommendations for an initial treatment plan that no follow-up services would be provided, and no medication prescriptions would be directly provided by the doctor.   On June 10, 2007, decedent committed suicide.  . 

We hold that the ninety-minute consultation performed in this case created a doctor-patient relationship.  We acknowledge that the telepsychiatry research study conducted by the doctor provided no treatment component directly to decedent, other than recommendations to her treatment team.  However, through this consultation, a limited doctor-patient relationship was established and we conclude that a duty of due care applies.  Through this consultation, defendant’s doctor assumed a duty to act in a manner consistent with the applicable standard of care so as not to harm decedent through the consultation services provided.   We also hold that even if the doctor-patient contact had ended, this does not terminate the doctor’s responsibility for the consequences of any lapses in his duty to provide services consistent with the applicable standard of care for the consultation. The doctor had a duty of due care in his professional contact with decedent, which was not extinguished by any formal written act of termination of their professional relationship. 

Because of the procedural posture of this case the scope of defendant’s duty and the standard of care cannot yet be determined.  In evaluating the standard of care, we must not conflate the existence of a duty with the appropriate standard of care, an issue that takes us beyond the limited facts in the record before us and was not raised below. Because a duty applies to the service provided, we reverse and remand for additional proceedings

Three year statute of limitations for medical malpractice applies, notwithstanding argument that cancer is a “noxious agent” with prolonged latent development.

Campbell v. Stafford , 2011 VT 11 (mem.)

The trial court concluded that plaintiff’s claim was time-barred under the three-year limitation set forth in 12 V.S.A. § 521. Plaintiff appeals the trial court’s denial of her motion for reconsideration and motion to amend.  We affirm.

 

Plaintiff filed her malpractice suit over three years of last date on which Defendant treated plaintiff without ordering additional testing or treatment for thyroid cancer.  After judgment had already been entered on statute of limitations grounds,  Plaintiff sought to amend  her complaint to allege the theory that her cancer was a noxious agent, and that the claim was actionable under 12 V.S.A. § 518..  But  this “claim” added nothing.  12 V.S.A. § 521, as opposed to 12 V.S.A. § 518(a), controls this case.

In order for 12 V.S.A. § 518(a) to apply, plaintiff’s cancer would have to be considered a “noxious agent.”  An “agent” is something that acts upon the body, causing a disease or illness such as cancer.  Though the cancer in this case may have had a prolonged development period, it was not itself a “noxious agent”. Given the failure of plaintiff’s amended complaint,  Defendants were entitled to summary judgment as a matter of law.