Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. Vermont instead follows principles of several liability, pursuant to which each defendant is liable only for the portion of the plaintiff's damages attributable to that defendant's negligence, in ratio of the amount of the defendant's causal negligence to that of all defendants against whom recovery is allowed.
The Collateral Source Rule
Under Vermont's collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies are not considered in the calculation of damages.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. The statute of limitations for malpractice cases in Vermont is three years from the date of the incident underlying the action, or two years from the date that the cause was or reasonably should have been discovered, whichever occurs later. However, no malpractice case may be commenced more than seven years after the incident. For malpractice claims by minors, the statute of limitations begins to run at the age of eighteen.
Additional rules affecting malpractice litigation in the State of Vermont include:
Alternative Dispute Resolution
In Vermont, prior to the commencement of trial the parties to a medical malpractice case may agree to participate in arbitration proceedings. Once the parties agree to arbitration, a party may withdraw from the proceedings only if all other parties consent. The arbitration panel is composed of a judicial referee, a layperson and, to the extent possible, a member of the same profession as the defendant. The parties have limited rights to object to or demand replacement of proposed panel members. Panel proceedings are informal, but all testimony is taken under oath. Expert witness testimony is not required. Proceedings are transcribed, and the judicial referee must maintain custody of exhibits submitted as evidence. Within thirty days of the completion of the hearing, the arbitration panel must file a written decision with the court, with a decision issued by majority vote. If the decision is in favor of the claimant, it must specify a damage award and the amount to be paid by each defendant. A panel member who disagrees with the decision may file a concurring or dissenting opinion that states the member's reasons for disagreement. Upon application of any party, the trial court must issue a judgment consistent with the decision of the arbitration panel.
Certificate of Merit Rules
A certificate of merit is a document created by a medical expert, attesting that the expert has reviewed the facts of the case and finds there to be merit to the malpractice plaintiff's claim. In a Vermont medical malpractice case, a certificate of merit must be filed at the same time as the complaint is filed. The plaintiff must certify to having consulted with a qualified expert in relation to each defendant identified in the complaint. A certificate of merit must provide that the plaintiff or plaintiff's lawyer has consulted with a qualified medical expert who has described the applicable standard of care, and who has indicated both that there is a reasonable likelihood that the plaintiff will be able to prove that the defendant failed to meet that standard of care, and that there is a reasonable likelihood that the plaintiff will be able to show that the defendant's failure to meet that standard of care caused the plaintiff's injury. The plaintiff may satisfy that requirement through consultation with more than one expert, as long as the experts' findings collectively meet those requirements.
Unless the trial court finds that expert testimony is not required to establish a case for medical malpractice, the failure to file a certificate of merit is grounds for dismssal without prejudice. No certificate of merit is required if the sole allegation against the health care provider is failure to obtain informed consent.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Under Vermont's apology law, 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. When that rule applies, no party is permitted to examine or depose the defendant with respect to the expression of regret or apology.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.