Wissell v. Fletcher Allen Health Care, Inc. , No. 232

- 2

- 12 Cncv (Grearson, J., May 22, 2014)

[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

Chittenden Unit Docket No. 232

- 2

- 12 Cncv

HEATHER WISSELL , Individually, and as Administratrix for the Estate of Dylan M. Wissell

Plaintiff

v.

FLETCHER ALLEN HEALT H CARE, INC.

Defendant

DECISION AND ORDER ON PLAINTIFF’S MOTION FOR LEAVE TO FILE A

SECOND AMENDED COMPLAINT

Plaintiff has moved pursuant to V.R.C.P. 15 to amend the First Amended Complaint to add common law claims for negligent misrepresentation and intentional misr epresentation. Defendant opposes the motion on the ground that the proposed amendment would be futile.

Amendment of Pleading

A party may amend their pleading “only by leave of court or by written consent of the adverse party; and leave shall be freely gi ven when justice so requires.” V.R.C.P. 15(a). The Supreme Court of Vermont has recognized a liberal policy for permitting amendments to the pleadings. See, e.g., Lillicrap v. Martin , 156 Vt. 165 (1991). When the proposed amendment is not prejudicial to th e objecting party, and is “not obviously frivolous nor made as a dilatory maneuver in bad faith, it is an abuse of discretion to deny the motion.” Hunters, Anglers and Trappers Ass'n of Vermont, Inc. v. Winooski Valley Park Dist. , 2006 VT 82, ¶ 17, 181 Vt. 12 (quoting Bevins v. King , 143 Vt. 252, 254

- 55 (1983)). Although a motion for leave to amend should be denied in certain circumstances, “Rule 15(a) tilts heavily in favor of granting motions to amend,” and “ it is only in ‘rare cases’ that ‘denial of a mo tion under Rule 15(a ) may be justified based upon a consideration of the following factors: (1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party.’” Prive v. Vermont Asbestos Group , 187 Vt. 280, 286

– 87 (2010) (q uoting Colby v. Umbrella , 2008 VT 20, ¶¶ 12

– 13, 184 Vt. 1).

To determine whether a proposed amendment is “futile,” the court must examine whether plaintiff’s amended complaint would survive a 12(b)(6) motion to dismiss. Id . ¶ 13. “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 the plaintiff to relief.” Id . ¶ 14 (quoting Bock v. Gold , 2008 VT 81, ¶ 4, 184 Vt. 575) (not ing that plaintiffs face an “exceedingly low threshold” for withstanding a 12(b)(6) motion to dismiss, and that such motions “are disfavored and should be rarely granted”).Page 2 of 4

The Parties’ Argument s

In her motion to amend, Plaintiff notes that the “issue of informed consent and misrepresentation have been discussed and approved by other courts,” see Pl.’s Mot. for Leave to File a Second Am. Compl. (“Pl.’s Mot.”) 2 (citing Bloskas v. Murray , 646 P.2d 9 07 (Colo. 1982)), that the Vermont Supreme Court has recognized the torts of negligent and intentional misrepresentation, see id . (citing Silva v. Stevens , 156 Vt. 194 (1991), and that the tort of battery has been found not to be preempted by the Vermont s tatute on informed consent. See id . (citing

Christman v. Davis , 179 Vt. 99 (2005).

In opposition to Plaintiff’s motion to amend, Defendant argues that Plaintiff’s proposed

amendments are futile and cannot survive a motion to dismiss for three reasons:

(1) V ermont’s informed consent statute (12 V.S.A. § 1909) provides the exclusive remedy for any claim based on alleged preoperative misrepresentations made by a physician to a patient, and therefore preempts any common law claims for misrepresentation.

(2) The Ver mont Supreme Court has not recognized a cause of action against medical professionals for negligent or intentional misrepresentations.

(3) Even assuming such claims exist at common law and are not preempted by the informed consent statute, Plaintiff cannot po ssibly satisfy two essential elements of the proposed claims: an actionable mi srepresentation and proximate c ause.

See Def.’s Opp. to Pl.’s Mot. for Leave to File a Second Am. Compl. (“Def.’s Opp.”) 2. Plaintiff did not file a response to Defendant’s oppo sition memorandum.

Misrepresentation

The Vermont Supreme Court has adopted the Restatement (Second) of Torts definition of negligent misrepresentation in the context of business transactions:

One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating

the information.

Limoge v. People's Trust Co. , 168 Vt. 265, 269 (1998) (citing Restatement (Second) of Torts (“Restatement”) § 552(1) (1977); Silva v. St evens, 156 Vt. 94, 108 (1991)). The damages recoverable for a negligent misrepresentation are those “necessary to compensate the plaintiff for the pecuniary loss to him of which the misrepresentation is a legal cause,” and do not include

“the benefit of th e plaintiff’s contract with the defendant.” See Restatement § 552B; see alsoPage 3 of 4

Pearson v. Simmonds Precision Products, Inc. , 160 Vt. 168, 173

– 74 (1993) (plaintiff not entitled to recover damages for mental and emotional distress in negligent misrepresentatio n case because § 552 of Restatement limits recovery to pecuniary damages).

Additionally, the Court has set out the elements of fraud, or intentional misrepresentation,

as follows:

An action for fraud and deceit will lie upon an intentional misrepresenta tion of existing fact, affecting the essence of the transaction, so long as the misrepresentation was false when made and known to be false by the maker, was not open to the defrauded party's knowledge, and was relied on by the defrauded party to his damag e.

Silva , 156 Vt. 94, 102 (1991) (citing Union Bank v. Jones , 138 Vt. 115, 121 (1980) ) . The measure of damages for intentional misrepresentation is similar to that of negligent misrepresentation, except that the recipient of a fraudulent or intentional mi srepresentation in a business transaction “is also entitled to recover additional damages sufficient to give him the benefit of his contract with the maker, if these damages are proved with reasonable certainty.”
Restatement § 549.

The Supreme Court has never applied these types of negligent or intentional misrepresentation claims to the context of informed consent for medical procedures. Moreover, the Court has never recognized the distinct torts of intentional and negligent misrepresentation involving r isk of physical harm as outlined in §§ 310

– 11 of the Restatement. See Kellogg v. Wyeth , 762 F.Supp.2d 694, 706 n.7 (D. Vt. 2010) (observing that the Vermont Supreme Court has “neither adopted nor rejected these sections of the Restatement”).

Preemption

I n Christman v. Davis , the Vermont Supreme Court held that the statutes regulating medical malpractice

— 12 V.S.A. §§ 1908 and 1909

— did not preempt the plaintiff’s battery claim. 2005 VT 119, ¶ 12, 179 Vt. 99. Those statutes are defined in § 1908 as actions i nvolving “negligence,” while battery is an intentional tort stemming from lack of consent as opposed to

lack of informed consent. Id . ¶ 9. The Court further observed that the effect of the informed consent statute “was not to eliminate a traditional theory of liability.” Id . ¶ 11 (citing Begin v.

Richmond , 150 Vt. 517, 523 (1988)). If anything, the Court held, “the wording of §§ 1908 and 1909 clearly and expressly states the Legislature had no intent to change the availability or

elements of a claim for common

- law battery.” Id . ¶ 10. Furthermore, the parti cular placement of the medical malpractice statutes within Title 12 indicated the “Legislature’s intent to provide rules on burdens of proof and evidentiary requirements for existing claims, rather than to wholly displace substantive common

- law theories o f medical tort.” Id . ¶ 10 n.2.

Conclusion

Although the effect of § 1909 may not have been to eliminate a “traditional theory” of liability, neither negligent nor intentional misrepresentation have been recognized as traditional,Page 4 of 4

common

- law theories of l iability for medical tort in Vermont. This Court sees no reason to do so now, particularly considering that a physician’s alleged nondisclosure or misrepresentation of information to a patient is actionable under the medical malpractice statutes. Further, the Court agrees with Defendant that Plaintiff’s reliance on Bloskas v. Murray , 646 P.2d 907 (1982) is misplaced. While the Colorado Supreme Court concluded that under the factual scenario in

Bloskas the evidence was sufficient to present a jury question o n negligent misrepresentation independent of the informed consent claim, that case involved Restatement § 311 (“Negligent Misrepresentation Involving Risk of Physical Harm”), which Colorado had adopted and which Vermont has never adopted. Cf. Willis v. Ben der , 596 F.3d 1244, 1258

— 59 and n.9 (2010) (explaining that, although Wyoming had adopted Restatement § 552, it had not adopted § 311, and therefore it was “doubtful whether a negligent misrepresentation claim is an avenue of relief available to most patie nts in Wyoming” because “[a] patient harmed by a physician’s misrepresentations may not always suffer economic loss”). Moreover, Plaintiff does not appear to allege that any pecuniary damages, as contemplated by Restatement § 552, were suffered as a

direct and proximate result of the alleged negligent or intentional misrepresentation. Instead, Plaintiff alleges personal injury, substantial emotional distress, pain and suffering, and mortal injury. See Pl.’s Proposed Second Am. Compl. ¶¶ 50, 57. Thus, Plaint iff does not allege any

additional damages in her proposed claims that she fails to allege in her informed consent claim. Although the Court does not explicitly hold that the medical malpractice statutes preempt misrepresentation claims against medical pro fessionals, the Court concludes that in this factual scenario, the proposed amendments would be pointless.

ORDER

Accordingly, P laintiff’s Motion for Leave to F ile a Second Amended Complaint is

denied

.

So Ordered.

Dated at Burlington, Vermont, May 20

, 2014.

___________________ Brian J. Grearson Superior Court Judge