Vermont

A patient who has suffered an injury due to medical malpractice in Vermont will face several challenges if the decision to seek the advice of legal counsel is not made in the earliest days of discovering that medical negligence may have occurred. While Vermont about the nation remains relatively favorable statutorily-speaking towards plaintiffs in medical malpractice cases, having legal counsel will allow greatly increase the likelihood of a successfully resolved Vermont medical malpractice claims case.

Important Immediate Considerations under Vermont’s Medical Malpractice Laws

Based on knowledge of Vermont’s statutes and laws relevant to medical malpractice litigation, the following items are the most important considerations for patients concerning when and how to file a medical malpractice claim in Vermont.  A Vermont plaintiff whose claims are based on medical malpractice should consider:

  • Vermont’s statute of limitations for medical malpractice actions is three years from the malpractice event of two years from discovery of the injury if that injury arises later than the three-year deadline
  • Vermont has a seven-year statute of repose, and medical malpractice cases filed after this seven-year deadline are subject to dismissal
  • No damages limitations are imposed upon parties injured by medical malpractice in Vermont
  • Vermont does follow modified comparative negligence rules, which can diminish and defeat an injured party’s potential recovery if that party is partially responsible for his injuries
  • Vermont, medical malpractice cases, can be initiated without any certificates of merit or prior review of claims by medical experts
  • Damages and Relevant Vermont-Specific Proportional Liability Laws
  • Vermont’s modified comparative negligence standards will reduce the total compensation an injured party may receive on account of medical malpractice in proportion to his or her culpability for those injuries. If the injured person is more than fifty per cent responsible for his injuries, his opportunity to receive monetary damages can be eliminated.

Vermont Medical Malpractice Laws

Vermont recently studied the adoption of a no-fault compensation system in which parties who suffered injuries through medical malpractice would submit claims to an independent tribunal, which could then provide compensation directly. Many Vermont physician groups favored this system, as it freed them and their insurance carriers from the prospect of having to pay damages for their medical malpractice.  No steps were taken to adopt such a system, however, and the state of Vermont remains a modified comparative negligence jurisdiction for medical negligence tort litigation.

URLS from Above

http://legislature.vermont.gov/statutes/section/14/071/01491

Vermont Does Not Employ Statutory Caps on Damages in Medical Malpractice Lawsuits

Vermont is one of a minority of states that does not have a cap on damages in medical malpractice cases. However, the state has historically had a low number of successful medical malpractice claims, and jury awards far below the national average.

Statute of Limitations Applicable to Medical Malpractice Lawsuits in Vermont, as of 2016

Persons injured through medical malpractice in Vermont are allotted three years from the date of the malpractice or two years from the discovery of their injuries to file their claims, under medical malpractice laws in Vermont defining the statutes of limitation period in the state.  If the injuries are not readily discoverable, Vermont allows seven years from the initial date of malpractice for a party to file a lawsuit based on his or her claim. If the medical malpractice claim stems from foreign objects left in the person’s body after surgery, this seven-year limit is extended such that a Vermont plaintiff will have two years after the discovery of the object to file his or her medical malpractice claim.

URLS from Above:

http://legislature.vermont.gov/statutes/section/12/023/00521

 Comparative Liability and Negligence in Vermont Medical Malpractice Lawsuits

Vermont does not impose limitations on awards for medical malpractice for either economic or noneconomic damages, however in a medical malpractice case, Vermont’s modified comparative negligence standards may reduce the total compensation an injured party may receive on account of medical malpractice in proportion to his or her culpability for those injuries. If the injured person is more than fifty percent responsible for his injuries, his opportunity to receive monetary damages can be eliminated.

In 2012, Vermont studied the adoption of a no-fault compensation system in which parties who suffered injuries through medical malpractice would submit claims to an independent tribunal, which could then provide compensation directly. Many Vermont physician groups favored this system, as it freed them and their insurance carriers from the prospect of having to pay damages for their medical malpractice.  No steps were taken to adopt such a system, however, and the state of Vermont remains a modified comparative negligence jurisdiction for medical negligence tort litigation.

URLS from Above:

http://vtdigger.org/2012/02/02/report-recommends-against-no-fault-medical-malpractice/

Vermont’s Modified Liability Standard

Vermont follows a modified comparative negligence rule. This means that an award is proportionally reduced by the negligence of the plaintiff, as determined by the trier of fact. For example, if a plaintiff is awarded $100,000, but a jury determines that he is thirty percent at fault for his injury, then the award would be reduced to $70,000. If the jury determines that the plaintiff is more than fifty percent at fault for his injury, then he receives no award.

URLS from Above:

http://legislature.vermont.gov/statutes/section/12/023/00521

Punitive Damages in Medical Malpractice Cases under Vermont Law

Under the case McCormick v. McCormick, punitive damages may be awarded in cases where the defendant acted with ill will, evidencing insult or oppression, or with a reckless or wonton disregard of the health of another. Such cases are rare, however. As with other damages, there are no limits on punitive damage awards in Vermont.

URLS from Above:

https://www.cga.ct.gov/2003/olrdata/ins/rpt/2003-R-0743.htm

Vicarious Liability Case Law in the State of Vermont Regarding Medical Malpractice Lawsuits

To date, Vermont courts have not found hospitals vicariously liable for medical malpractice committed by physicians acting as independent contractors.

Medical Expert Testimony Not Statutorily Required in Vermont Medical Malpractice Lawsuit Initial Filings

Under Vermont law, there are no requirements for experts to review malpractice claims before or after they are filed.  Nonetheless, proof of a party’s claims will be enhanced by expert testimony as to applicable standards of care and whether the defendants adhered to those standards. Having legal counsel available to know when and how to best deploy expert testimony in your case, as well as to facilitate obtaining this testimony and evidence in a medical malpractice claims case is highly advisable.

Arbitration Not Mandated, but Encouraged under Vermont Medical Malpractice Laws

Vermont does not have mandatory arbitration for medical malpractice claims but encourages such cases to go before a three-person panel of arbitrators made up of a judge, a layperson, and a member of the same profession as the respondent.

URLS from Above:

http://legislature.vermont.gov/statutes/section/12/215/07002

http://legislature.vermont.gov/statutes/chapter/12/215

Medical Malpractice Statistics in Vermont

Vermont has some of the lowest rates of successful medical malpractice claims in the country. Between 1996 and 2003, on average 30 claims were paid out in the state each year, according to a 2012 report from the Vermont Secretary of Administration. The median payment of claims is roughly half of the national average. In 2006, the state was ranked fifty-first (including Washington, D.C.) concerning mean payments for malpractice claims.

URLS from Above:

http://hcr.vermont.gov/sites/hcr/files/Medical%20Malpractice%20Reforms%201312012.pdf

 Bench and Jury Trials in Vermont Medical Malpractice Lawsuits

In Vermont, a trial will go before a judge unless either party requests trial by jury. Vermont requires jury verdicts to be unanimous.

URLS from Above:

https://www.ncjrs.gov/txtfiles/cjcavilc.txt

Wrongful Death Claims Involving Medical Malpractice as a Cause of Action in Vermont

Wrongful death actions in Vermont must be brought by the personal representative of the estate, though awards may compensate both the estate and surviving family members. A wrongful death action can be brought for “wrongful act, neglect, or default of another,” under the Vermont statute. Relatives may seek compensation for loss of love, care, protection, nurture companionship, and the parent-child relationship.

The statute of limitations in wrongful death cases depends on several variables. The wrongful death action must be brought within two years of the defendant’s return to the state of Vermont if the defendant is outside the state. If a criminal case is filed under the same set of facts, the wrongful death case must be filed within two years of a conviction or seven years of the date charges was filed. All other wrongful death actions have a two-year statute of limitations.

Every medical malpractice case is different, requiring input from patients, experts, and counsel. Because of that, and because time can be of the essence in filing a medical malpractice claim, it is important to consult with an attorney promptly if you suspect medical malpractice is involved in an injury or wrongful death.

URLS from Above:

http://legislature.vermont.gov/statutes/section/14/071/01491

 

 

Questions About Medical Malpractice?