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Medical Malpractice in Vermont: What Injured Patients Should Know

medical-malpractice-case

Medical Malpractice in Vermont: What Injured Patients Should Know

medical-malpractice-case

By Steven A. Bredice, Esq., Board Certified Civil Trial Specialist

If you have an injury that may have been caused by medical malpractice, you are probably wondering how a medical malpractice case works and what you need to prove in order to win the case.

Medical malpractice cases are unique because they usually involve complicated and specialized issues requiring expensive expert testimony, because doctors and hospitals receive special legal protections and advantages, and because of a social bias against suing health care providers. However, serious and even catastrophic harm can arise from substandard medical care so when liability is clear it becomes critical that financial responsibility is placed on the right party.

The Medical Malpractice Statute of Limitations in Vermont

The first thing to know is your case must be brought within the statute of limitations, which puts time limits on how long after an injury you can file a lawsuit. Vermont’s medical malpractice statute of limitations is three years from the date of the injury or two years after the injury was discovered, whichever is later, but not more than seven years after the harmful incident.

Lawsuits based on discovery of a “foreign object” in the patient’s body, like a sponge or a surgical tool, may can move forward within two years of the date of discovery. However, if the doctor fraudulently concealed the injury, no limitations apply on when you can file a lawsuit.

When the patient has died as a result of medical negligence, the case must be filed within the two-year wrongful death statute of limitations.

Initial Medical Malpractice Case Review

Assuming your case is not “time-barred,” your lawyer will gather all relevant medical records and assess the viability of your case, often consulting with an independent doctor who has expertise in the given area of medicine. The goal of the case review is to determine whether a doctor, hospital or other provider harmed you, the patient, because of a “deviation from the standard of care.”

If the initial case review supports your position, your lawyer will try to settle the case. If this fails, they will then prepare a lawsuit against the doctor, hospital or other provider whose departure from proper practice caused your injury.

3 Requirements for Medical Malpractice Lawsuits

In a lawsuit, you have to meet three requirements if your case has any chance of winning.

First, you must establish what that “standard of care” is. This requires actual testimony from expert medical witnesses that defines “the degree of knowledge, skill or care ordinarily exercised by a reasonably skillful, careful and prudent health care professional engaged in a similar practice under the same or similar circumstances, whether or not within the state of Vermont.”

Second, you need to prove the treating provider either lacked or failed to exercise such skill, and, third, you must also show how the doctor’s departure from the standard of care caused you harm.

The economic value of these injuries include medical bills for treating the malpractice, lost wages during the recovery period, compensation for permanent impairment or disfigurement, compensation for future medical expenses needed and compensation for the pain and suffering the patient has to endure because of the doctor’s mistake.

Different standards apply to damages when the patient has died due to negligence, including the degree of loss to the surviving family members.

Advantages Doctors Get in Vermont Medial Malpractice Lawsuits

It’s important to note that the Vermont Legislature has made it harder to even start a suit against a doctor.

The state of Vermont requires the patient’s lawyer to provide a sworn “certificate of merit,” putting an extra hurdle in place for the patient to clear. This document states they have consulted with appropriate experts who will verify under oath that all of these conditions are met—before filing suit. Doctors are the only professionals in Vermont who are given this extraordinary advantage in the legal system.

Once your lawyer has experts who will testify that you are the victim of medical malpractice, and submitted this to the Court, you can file your lawsuit and serve it on the Defendant. The Defendant has usually retained a lawyer and experts of their own by this point, paid by their malpractice insurance company. Unlike the patient, the doctor does not need to certify that their side of the case has expert support.

The Medical Malpractice Litigation Process

Once your case has been screened by a lawyer, submitted to a medical expert, and certified as having medical and legal merit, and your lawsuit has been filed, the next step involves written exchanges between the two sides called “Interrogatories and Requests for Production of Documents and Things.”

After the Plaintiff and Defendant exchange questions, answers and materials, the case is ready for depositions.

Depositions are statements under oath transcribed verbatim by a court reporter. The patient and the Defendant doctor are the first ones deposed, along with any witnesses to the important events in the case.

The Interrogatory responses and transcripts of their depositions are then sent to the medical experts in the case, supplementing the information in the records they have already reviewed.

These experts provide “disclosures,” or written opinions about the standard of care, the alleged deviations and the role they played in causing the patient’s harm. Next comes the deposition of these experts, where the lawyers question how they reached their opinions about the case and discuss any limitations on those opinions.

Mediation of a Medical Malpractice Case

Your medical malpractice case is now on the road to an actual trial—with one critical last stop: Mediation.

Mediation is a formal meeting between the patient and the doctor, along with their lawyers, under the supervision of a neutral third party, usually a seasoned trial lawyer or retired judge. This person tries to convince both parties to find common economic ground in the settlement value of the case.

Mediators do this by listening to both sides, relaying each parties’ position to the other side in terms that help them consider the risks for both the case and the defense. The overwhelming majority of medical malpractice cases, and cases in general, settle as a result of mediation.

Trial and Appeal

The small percentage of cases that cannot be resolved through mediation proceed to trial.

I have discussed the trial and litigation process in more detail in an earlier post, but in summary, a trial begins with jury selection and proceeds to opening statements by the lawyers. The attorneys present evidence with the direct and cross-examination of witnesses, followed by closing arguments, instructions to the jury by the Judge, deliberations, the verdict and, in some cases, an appeal.

Due to the special requirements for medical malpractice cases, along with the high cost of paying the medical experts for their time, only the most serious cases with the greatest harms merit a lawsuit. In addition, the extraordinary protections provided to doctors under Vermont’s medical malpractice system make the patient an underdog.

Thankfully, though, the Vermont Legislature has rejected efforts by powerful medical lobbyists to put caps on pain and suffering, actual damages, and attorneys fees. They have also stopped lobbyists from requiring case approval by screening panels before the filing of a medical malpractice lawsuit, which is the case in many other states despite the utter lack of any evidence that medical malpractice lawsuits increase insurance costs or drive good doctors away.

On the contrary, medical malpractice cases protect not only the public, they also protect good doctors by weeding out bad practitioners and putting the economic responsibility for catastrophic outcomes where it belongs—with the insurer that took premiums from the Defendant, instead of the patient’s own insurer or taxpayer-funded medical insurance programs.

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Due To Medical Malpractice?


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Steven A. Bredice