Carter v. Menard , 562

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- 16 Wncv (Teachout, J., Mar. 1, 2017)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the

accompanying data included in the Vermont trial court opinion database is not guaranteed.]

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 562

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- 16 Wncv

BERNARD CARTER

Plaintiff

v.

LISA MENARD, COMMISSIONER,

VERMONT DEPARTMENT OF CORRECTIONS

Defendant

ENTRY

Inmate

– Plai ntiff Bernard Carter a lleges that the Department of Corrections repeatedly

provided negligent healthcare to him for a broken toe, which healed improperly and now causes

pain. H e seeks $280,000 as compensation

. He does not seek injunctive relief. The State seeks

dismissal for lack of subject matter jurisdiction because Mr. Carter failed to exha ust his

administrative remedies and failed to file a certificate of merit pursuant to 12 V.S.A. § 1042(a).

Exhaustion

The DOC’s grievance policy applies generally to all conditions of confinement including

any “matter relating to access to privileges, programs and services, conditions of care or

supervision under the authority of the Department of Corrections, to include rights under the

federal Americans with Disabilities Act. ” Directive #320.01 , Procedural Guidelines ¶ 6 (a).

Claims based on the quality of medical treatment or those seeking compensatory damages are

nowhere excluded from the policy , though there are spec ial procedures for emergency and non

emergency grievances related to health

. Id . ¶ 11. The grievance policy therefore appears to

apply to Mr. Carter’s claim, and he does not dispute that.

He also concedes that he failed to exhaust. H e pursued a grieva nce to the point of filing

an appeal to the Commissioner, but th en filed this action before the Commissioner’s time to

respond had elapsed. Directive #320.01 , Procedural Guidelines ¶ (15) (b)(i) (time to respond)

. No response came. Mr. Carter now seeks a stay so he can complete the grievance process and

avoid dismissal.

In a previous case in which Mr. Carter failed to exhaust and sou ght a stay, the court

explained: “The court also rejects Mr. Carter’s request for a stay pending exhaustion.

Exhausting a dministrative remedies while this lawsuit is pending, even if stayed, would

undermine rather than reinforce the salutary purposes of the exhaustion requirement.” Carter v.

Pallito

, No. 177

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- 14 Wncv, 2015 WL 5176807 (Vt. Super. Ct. Jan. 5, 2015).

“A party’s failure to exhaust administrative remedies permits a court to dismiss the actionfor lack of subject matter jurisdiction. ” Jordan v. State Agency of Transp. , 166 Vt. 509, 511

(1997) . The court lacks subject matter jurisdiction. Dismissal is appropriate. A stay is not.

Certificate of merit

Even if Mr. Carter had exhausted his administrative remedies, dismissal would be

appropriate because he failed to file a c ertificate of merit. 12 V.S.A. § 1042. Section 1042(a)

bars civ il actions based on the negligence of a health care provider (other than informed consent

claims) absent a certification that the plaintiff consulted with a medical expert who described the

applicabl e standard of care and concluded that there is a reasonab le chance that the plaintiff will

be able to prove that the defendant deviated from that standard of care and that the deviation

caused of the alleged injury. The only exception is where the court finds that the medical

negligence claim is so obvious that it does not require expert support. 12 V.S.A. § 1042(e).

Mr. Carter’s claim plainly would require expert support. Knowledge about broken toes,

their treatment, and the consequences of errors in their treatment cannot reasonably be attributed

to ordi nary laypersons. He was required to file a 12 V.S.A. § 1042(a) certificate and has not.

The State’s motion to dismiss is granted.

ORDER

The State’s motion to dismiss filed November 14, 2016 is granted.

Plaintiff’s cross motion to stay the proceedi ngs filed November 30, 2016 is denied.

Dated at Montpelier , Vermont this ____ day of February 201 7

.

_____________________________ Mary Miles Teachout

Superior Judge