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SUPERIOR COURT Washington Unit 65 State Street Montpelier VT 05602 802-828-2091 WWW.vermontjudiciary.orgCIVIL DIVISION

Case No. 23-CV-03438

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inion and Order on Defendants’ Motion to Dismiss

Plaintiff filed this action alleging that the medical care he received from the

Defendants, both healthcare providers, fell below the applicable medical standard of

care and that he sustained injury as result. Defendants have moved to dismiss

arguing that Plaintiffs complaint

is not supported by the mandatory certificate of merit required by 12 V.S.A. 1042(a). Plaintiff counters that the Defendants

committed medical malpractice by mistreating his elbow bursitis that had

progressed to staph infection. He also claims that Defendants failed to obtain his

informed consent to procedures, including an aspiration, of his elbow. He claims

that he can self-certify his complaint based on his acquired medical acumen. The

Court makes the following determinations.

“Dismissal under Rule 12(b)(6)is proper only when it is beyond doubt that

there exist no facts or circumstances consistent with the complaint that would

entitle Plaintiff to relief.” Bock v. Gold, 2008 VT 81, 11 4, 184 Vt. 575, 576 (mem.)

(quoting Union Mut. Fire Ins. Co. v. Joerg, 2003 VT 27, 11 4, 175 Vt. 196, 198)). In

considering motion to dismiss, the Court “assume[s] that all factual allegations

Christopher White V. Anne Brereton, et a1
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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 standard 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 straightforward: Section 1042(a) requires there to 

be a certificate 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. Accordingly, the complaint must be dismissed. Plaintiff 

maintains that he may self-certify the complaint based on his own Red Cross 

training and internet research. 

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

Section 1042 provides: 

(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 

qualified 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:
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(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 this 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 plaintiff can self-certify her own medical malpractice 

complaint,

1 no such certificate 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 and Red Cross training, Section

1042(a) requires that the certificate 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, see 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. 
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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 expert and to 

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

(medical malpractice “must 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. 

Plaintiff’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 diagnose his elbow 

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

was not appropriate 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.
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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 the aid of expert medical evidence in order to determine that the discovery 

of a fly in a mouthful of Coca-Cola caused the vomiting which immediately followed 

the discovery”). 

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

Defendants 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, 

Defendants maintain that the exception applies only where a plaintiff seeks relief 

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

claim alleging direct medical negligence, Defendants argue that Plaintiff cannot 

rely on the exception. The Court disagrees. 

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

certificate of merit “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 types 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.
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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