Wallace v. Lawrence, No. 766-12-10 Wrcv (Teachout, J., October 8, 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 

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STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Windsor Unit Docket No. 766-12-10 Wrcv

PATRICIA WALLACE, Individually and as

Administratrix of the Estate of Randall Wallace

Plaintiff

v.

YOLANDA LAWRENCE, M.D., et al.

Defendants

DECISION

Defendant Lawrence’s Motion for Partial Summary Judgment (filed May 14, 2014)

Plaintiff Wallace’s Petition for Interlocutory Review (May 20, 2014)

Defendant Springfield Hospital’s Motion for Partial Summary Judgment (May 20, 2014)

Defendant Green’s Motion for Entry of Final Judgment (May 20, 2014)

This is a medical malpractice case. Plaintiff Patricia Wallace claims that she was given, 

and injured by, too high a dose of the sedative propofol when in the care of Defendants Yolanda 

Lawrence, M.D., her physician, Mark Green, C.N.R.A., a certified nurse anesthetist, and 

Springfield Hospital. During the pendency of this case, Ms. Wallace’s husband, who claimed 

loss of consortium, died. Ms. Wallace was appointed the administrator of his estate and 

substituted herself in this case to maintain the loss of consortium claim. On May 15, 2014, the 

court granted summary judgment to Defendant Green on liability. Plaintiff seeks interlocutory 

review of that decision. Defendant Green seeks partial final judgment pursuant to Rule 54(b). 

Separately, Dr. Lawrence and Springfield Hospital each have filed partial summary judgment 

motions arguing that Mr. Wallace’s loss of consortium claim did not survive his death.

Interlocutory Review

There are three criteria used to evaluate whether a case is appropriate for interlocutory 

review: whether the “ruling involves [1] a controlling question of law [2] as to which there is 

substantial ground for difference of opinion and [3] that an immediate appeal may materially 

advance the termination of the litigation.” V.R.A.P. 5(b)(1); see generally In re Pyramid Co. of 

Burlington, 141 Vt. 294 (1994) (discussing the criteria). Plaintiff disagrees with the court’s 

summary judgment ruling but has not isolated an issue that is appropriate for interlocutory 

review. The court ruled on summary judgment that Plaintiff’s expert’s specific testimony was 

that Mr. Green did not breach any standard of care and that the expert’s subsequent affidavit

generally asserting the contrary in opposition to summary judgment was unavailing. Plaintiff’s 

disagreement with court’s analysis does not warrant an “exception to the normal restriction of 

appellate jurisdiction to the review of final judgments.” In re Pyramid Co. of Burlington, 141 

Vt. at 300. This case has been pending for nearly four years. Liability with regard to the other 

defendants remains an open question. Interlocutory review now would do little more than cause 
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unnecessary delay and expense, and waste[] scarce judicial resources.” Id. Plaintiff’s motion is 

denied.

Partial Final Judgment

Rule 54(b) authorizes the court to enter partial final judgment that terminates part of the 

litigation only. Mr. Green seeks partial final judgment to the effect that Plaintiff’s claims against 

him have been determined in his favor. Doing so would force Plaintiff to either appeal, and 

litigate the appeal in the Supreme Court and the nearly identical claims against the remaining 

defendants in the trial court at the same time, or forego appeal to avoid fighting on two fronts. 

Mr. Green has come forward with no support for a finding that there is “no just reason for 

delay.” V.R.C.P. 54(b). Allowing the case to remain in an interlocutory phase with regard to 

Mr. Green’s liability until all of the claims have been decided will avoid piecemeal litigation and 

any risk that the Supreme Court will be required to address the same issues in successive 

appeals. Mr. Green’s motion is denied.

Survival of Loss of Consortium

Defendants Lawrence and Springfield Hospital argue that the loss of consortium claim 

did not survive the death of Mr. Wallace. They cite no binding authority to that effect and they 

offer no compelling rationale in support of that conclusion. The issue is one of statutory 

interpretation. The relevant survival statute provides as follows: “In an action for the recovery of 

damages for a bodily hurt or injury, occasioned to the plaintiff by the act or default of the 

defendant or defendants, if either party dies during the pendency of such action, the action shall 

survive and may be prosecuted to final judgment by or against the executors or administrators of 

such deceased party.” 14 V.S.A. § 1452. The question is whether a loss of consortium claim is a 

claim of “bodily hurt or injury.”

Section 1452 is little changed from its original enactment in 1847, which also included 

the expression “bodily hurt or injury.” The Vermont Supreme Court’s interpretation of that 

language in Whitcomb v. Cook, 38 Vt. 477 (1866), controls this case. In Whitcomb, the plaintiff 

alleged wrongful arrest and false imprisonment after being jailed on a writ due to an unpaid debt. 

At some point, the plaintiff died and the defendant argued that the claims did not survive under 

the precursor to 14 V.S.A. § 1452. The trial court ruled in favor of survival. Whitcomb, 38 Vt. 

at 479. On appeal, the defendant argued that the statute did not apply because “bodily hurt or 

injury” “imports violence, force, a wounding of the person,” circumstances that were not present 

in the plaintiff’s claim. Id. at 480 (emphasis in original).

The Court’s analysis begins with the observation that the harsh, old common law rule that 

torts die with the person had been so completely legislated away that “now [1863] . . . hardly any 

cause of action for damage to either person or property, is allowed to be defeated by the death of 

either the party injured or the party liable.” Id. at 481. It then distinguished bodily hurt from 

bodily injury. Bodily hurt implies direct force applied to the body. Id. at 482. Bodily injury is 

much broader, and encompasses injuries to character and reputation, emotional distress, 

aggravation, and pecuniary losses. Id. In other words, between them, they generally describe the 

harms caused by torts. The court thus concluded, “We think the clear and plain intent of the 
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statute was to make all actions survive when the cause of action was for a physical injury to the 

person caused in any unlawful manner.” Id. The legislature qualified hurt and injury with body, 

the court explained, solely “to carefully exclude certain actions which are sometimes by law 

writers included in the class of actions for personal injuries, such as actions of slander, and for 

malicious suits or prosecutions.” Id. The Court dismissed the defendant’s argument in favor of a 

narrower construction because the statute is “remedial” and should be “liberally construed.” Id. 

at 483. 

A loss of consortium claim plainly is within the ambit of “bodily injury,” as construed in 

Whitcomb, and the operative statutory language has not changed. Loss of consortium describes 

harm to the marital partnership.

[The marital] partnership with all its attendant and mutual correlatives includes 

and is summed up in the term “consortium.” Reason and experience demonstrate 

that a marriage involving a husband and wife as partners secures to each other not 

only material services, but love, felicity, companionship, the exchange of ideas, 

consultation with respect to the family welfare and the rearing of children, and the 

maintenance of an intimacy abounding in reciprocal acts of kindness. In short, 

consortium includes all of the elements of the conjugal unity deriving from the 

status of husband and wife bound in the closest entity recognized by society.

Albert v. McGrath, 278 F.2d 16, 18 (D.C. Cir. 1960), quoted in 1 Jacob A. Stein, Stein on 

Personal Injury Damages Treatise § 2:3 (3d ed.) (WL updated Apr. 2014); see also id. (The loss 

of consortium “can be seen as embracing the kinds of mental or emotional interests that are 

directly compensable to the injured person for another’s negligence or tortious conduct. The loss 

of love, affection, society, comfort, and sexual relations are inseparable and will often be 

indistinguishable from the emotional distress resulting from the injury to the spouse.”). Injuries 

to these interests are not distinguishable from distress of mind, disgrace, aggravation, and 

pecuniary losses. See Whitcomb, 38 Vt. at 482 (including such injuries within the concept of 

“bodily injury”). Loss of consortium claims survive under 14 V.S.A. § 1452. Accord Flight 

Line, Inc. v. Tanksley, 608 So.2d 1149, 1166–69 (Miss. 1992) (loss of consortium claim survives 

death of spouse holding claim); Bryant v. Kroger Co., 570 N.E.2d 1209, 1210–13 (Ill. Ct. App. 

1991) (same).

ORDER

Defendant Lawrence’s Motion for Partial Summary Judgment is denied.

Plaintiff Wallace’s Petition for Interlocutory Review is denied.

Defendant Springfield Hospital’s Motion for Partial Summary Judgment is denied.

Defendant Green’s Motion for Entry of Final Judgment is denied.

Dated this __ day of October 2014.

_____________________________

Mary Miles Teachout

Superior Court Judge