VermontSuperiorCourtFiled10/0€{23Washingtonnit

### SUPERIORCOURTWashington

### Unit65

### StateStreetMontpelier

## VT05602802-828-2091WWW.vermontjudiciary.org

### CIVILDIVISIONCaseNo.

### 23-CV-03438

## f1Efi

### inionand

### Orderon

### Defendants’Motionto

### Dismiss

### Plaintifffiled

### thisaction

### alleging

### thatthemedicalcarehereceivedfromthe

### Defendants,both

### healthcareproviders,

### fellbelowthe

### applicablemedical

### standardofcareand

### thathe

### sustained

### injuryas

### result.

### Defendants

### havemovedto

### dismiss

### arguing

### that

### Plaintiffscomplaint

### isnotsupported

### bythe

### mandatory

### certificateof

### meritrequired

### by12

### V.S.A.1042(a).

### Plaintiffcounters

### thatthe

### Defendantscommittedmedical

### malpractice

### by

### mistreatinghiselbow

### bursitisthathadprogressedtostaphinfection.

### Healso

### claims

### thatDefendants

### failedtoobtain

### hisinformedconsenttoprocedures,

### includingan

### aspiration,of

### hiselbow.

### He

### claims

### thathecan

### self-certify

### hiscomplaintbasedon

### hisacquiredmedicalacumen.

### TheCourtmakesthe

### followingdeterminations.

### “Dismissalunder

### Rule12(b)(6)

### isproperonlywhen

### itisbeyonddoubt

### thatthere

### existnofactsorcircumstancesconsistent

### withthecomplaint

### thatwould

### entitle

### Plaintiffto

### relief.”Bockv.Gold,2008

## VT81,114,184

### Vt.575,576(mem.)(quotingUnion

### Mut.

### FireIns.Co.v.

### Joerg,2003

## VT27,114,175

### Vt.196,198)).

### Inconsideringmotionto

### dismiss,the

### Court“assume[s]

### that

### allfactualallegations

### Christopher

### WhiteV.

### AnneBrereton,eta12

pleaded in the complaint are true, accept[s] as true all reasonable inferences that

may be derived from plaintiff ’ s pleadings, and assume[s] that all contravening

assertions in defendant ’ s pleadings are false.” Mahoney v. Tara, LLC , 2011 VT 3,

¶ 7, 189 Vt. 557, 559 (mem.) (internal quotation, brackets, and ellipses omitted).

Though that standar d informs the Court’s review, where, as here, the basis

for a dismissal is the failure to adhere to a statutory prerequisite to suit, the Court

must determine compliance with that directive as a legal determination.

Discussion

Defendants ’ argument is s traightforward: Section 1042(a) requires there to

be a certificat e of merit that is filed along with the complaint. The only exceptions

to that rule

, 12 V.S.A. § 1042(e) & (f), are inapplicable ; and no certificate of merit

was filed by Plaintiff. Accordi ngly, the complaint must be dismissed . Plaintiff

maintains that he may self

- certify the complaint based on his own Red Cross

training and internet re search.

The demand for a certification of merit comes directly from the Legislature

.

Section 1042 pro vides:

(a) No civil action shall be filed to recover damages resulting from

personal injury or wrongful death occurring on or after February 1,

2013, in which it is alleged that such injury or death resulted from the

negligence of a health care provider, unless the attorney or party filing

the action files a certificate of merit simultaneously with the filing of

the complaint. In the certificate of merit, the attorney or plaintiff shall

certify that he or she has consulted with a health care provider

quali fied pursuant to the requirements of Rule 702 of the Vermont

Rules of Evidence and any other applicable standard, and that, based

on the information reasonably available at the time the opinion is

rendered, the health care provider has:3

(1) described the applicable standard of care;

(2) indicated that based on reasonably available evidence there is a

reasonable likelihood that the plaintiff will be able to show that the

defendant failed to meet that standard of care; and

(3) indicated that there is a reasonable likelihood that the plaintiff will

be able to show that the defendant’s failure to meet the standard of

care caused the plaintiff’s injury.

12 V.S.A. § 1042(a).

Defendants are correct that t his provision “demands strict compliance

. ”

Quinlan v. Five Town Health Alliance, Inc ., 2018 VT 53, ¶ 19, 207 Vt. 503

, 511 . As

the statute itself states: “ The failure to file the certificate of merit as required by

this section shall be grounds for dismissal of the action without prejudice .” Id

. §

1042( e )

.

As to Plaintiff’s assertion that his own statements meet the above

requirements , assuming a p laintiff can self

- certify her own medical malpractice

complaint

, 1 no such certifica te was filed along with the Complaint. Compliance

after the fact does not meet the statute’s “simultaneous[]” demand and is legally

insufficient. See McClellan v. Haddock , 2017 VT 13, ¶ 25, 204 Vt. 252

, 264

.

Second, regardless of Plaintiff’s self

- study an d Red Cross training , Section

1042(a) requires that the certificat e of merit come from someone who is qualified as

an expert under Vt. R. Evid. 702 to opine as to various matters including the

applicable medical standard of care in the community , s ee 28 V.S.A. § 801(a) (DOC

1 The Court assumes, arguendo , that an appropriately qualified plaintiff may

be able to self

- certify her own complaint. The Court believes the question is not

without doubt, however.4

is to “provide health care for inmates in accordance with the prevailing medical

standards” ) , the breach of that standard, and causation

. Plaintiff’s filings do not

aver that he has sufficient background and training to be deemed an e xpert and to

be able to opine as to those areas. Cf. Begin v. Richmond , 150 Vt. 517, 520 (1988)

( medical malpractice “m ust be proved by expert testimony.”); Larson v. Candlish

,

144 Vt. 499, 502 (1984 ) (similar). As a result, even if the Court accepted Plaintiff’s

self

- certification, it would not meet the exacting demands of Section 1042(a). 2

Nor does the exception in Section 1042(e) for “rare instances” where

malpractice can be proven without expert testimony afford Plaintiff any relief.

Pl aintiff’s allegations of malpractice here simply do not present a case where the

medical standard of care and the failure to adhere to it are so obvious and extreme

that they would be able to be determined solely by lay testimony. See Larson v.

Candlish

, 144 Vt. 499, 502 (1984); Senesac v. Assocs. in Obstetrics & Gynecology

,

141 Vt. 310, 313 (1982)

. Plaintiff claims a failure properly to diagnos e his elbow

bursitis, which had progressed to a sta ph infection , and that the treatment provided

was not approp riate for such a condition . Sorting through such allegations requires

expert medical opinion and testimony and does not fall within the ken of typical

jurors. Cf

. Bittner v. Centurion of Vermont, LLC , 2021 VT 73, ¶ 24, 215 Vt. 475

, 484

(jurors can make a determination that the standard of care is breached “ when a

2 Plaintiff has filed a sur

- reply. The Civil Rules do not allow such filings absent

motion. Even if the Court considered it, however, it would not change the conclusions

of this Opinion. To the extent Plaintiff seeks to rely on his own medical records, those

cannot take the place of the certificate of merit required by Section 1042.5

surgeon leaves a foreign object inside [a] patient’s body during surgery ”); Crystal

Coca

- Cola Bottling Co. v. Cathey , 317 P.2d 1094, 1100 (Ariz. 1957) (jury “does not

require t he aid of expert medical evidence in order to determine that the discovery

of a fly in a mouthful of C oca

- C ola caused the vomiting which immediately followed

the discovery”).

Based on the above, Plaintiff’s direct medical malpractice claim is dismissed.

Defendant s also seeks dismissal of Plaintiff’s medical malpractice claim that

is based on an alleged failure to get his “informed consent” for certain procedures

concerning his elbow

. While there is an exception in Section 1042 (f) for such claims,

Defen dant s maintain that the exception applies only where a p laintiff seeks relief

“ solely ” based on lack of informed consent. Since Plaintiff in this case also filed a

claim alleging direct medical negligenc e, Defendant s argue that Plaintiff cannot

rely on the exception. The Court disagrees.

Section 1042(f), by its terms, states that the re quirement of obtaining a

certificate of me rit “shall not apply to claims where the sole allegation against the

health care provider is failure to obtain informed consent.” (Emphasis added). Had

the Legislature intended to bar complaints containing both t ypes of claims , it could

have chosen that language. By using the word “claims,” however, the Legislature’s

intent is clear: claims based solely on lack of informed consent can proceed without

a certificate merit; others may not.

Accordingly, Plaintiff’s malpractice claim that is based solely on the alleged

failure to obtain his informed consent is not dismissed.6

WHEREFORE, Defendants ’ motion to dismiss is granted as to the direct

malpractice claim and denied as to the malpractice claim based on the alleged

failure to obtain informed consent.

Electronically signed on Thursday, September 28, 2023 , pursuant to V.R.E.F.

9(d).

_______________________ Timothy B. Tomasi

Superior Court Judge