If you're thinking about filing a medical malpractice lawsuit in Vermont, there are a number of state laws that you need to be aware of. These lawsuits are usually complex undertakings, and you'll almost certainly need the help of an experienced medical malpractice attorney. But it's also useful to understand the basics of the process before you get started. Read on for some highlights of Vermont's medical malpractice laws, including the amount of time a plaintiff (the person filing the lawsuit) has to get the claim to court, the details of some important procedural rules for medical malpractice claims, and what happens if the court finds you partially responsible for your own injuries.
All states have laws that set out specific deadlines for filing medical malpractice lawsuits, called "statutes of limitations." These laws can be somewhat complex because they can contain as many as three or four separate deadlines. In Vermont, the standard deadline for filing a medical malpractice claim is three years from the date the medical error occurred or, under what's called the "discovery rule," two years from the date the injury was "or reasonably should have been" discovered, whichever is later.
But according to what's known as a "statute of repose," Vermont's law says that no medical malpractice case may be filed more than seven years after the date of the alleged malpractice, with one exception: cases that are based on the discovery of a foreign object in the patient's body. In that situation, the plaintiff can file the claim within two years of the date of the discovery of the foreign object, even if that discovery occurs more than seven years after the date the foreign object was left in the body.
In addition, if the health care provider engaged in "fraudulent concealment" to prevent the patient from discovering the medical negligence, there is no applicable statute of limitations. That means that once you've discovered the fraud and the negligence, you will still have an opportunity to file the lawsuit—even if the deadlines described above have passed.
Finally, if the injured patient is a minor or is incapacitated "due to a mental condition or psychiatric disability," the statute of limitations does not start running until the child turns 18 or until the person is no longer disabled. At that point the deadlines described above apply, and the "clock" begins to run.
It's important to note that if you do not file a medical malpractice lawsuit before the applicable time limit expires, you'll lose the right to pursue your claim. That's why it's essential to understand and comply with the statute of limitations.
(Vt. Stat. tit. 12, §§ 521 and 551 (2022).)
Under Vermont law, a plaintiff in a medical malpractice case must file a "certificate of merit" alongside the complaint (that's the document that starts the lawsuit). In this certificate, the plaintiff (or the plaintiff's attorney) must state that they have consulted with a qualified medical expert who has:
Vermont law states that the only circumstances that do not require certificates of merit are those rare instances in which "a court determines that expert testimony is not required to establish a case for medical malpractice." If you are required to file a certificate of merit and fail to do so, the court can dismiss your case—although it will be dismissed "without prejudice," meaning that you can refile it once you have all of the correct paperwork in place.
The full details of Vermont's "certificate of merit" requirement are spelled out at Vt. Stat. tit., 12 § 1042.
Some states limit the amount of compensation that can be awarded in successful medical malpractice cases, especially when it comes to noneconomic damages. These limits are known as "damage caps." In Vermont, though, there is no such cap on damages in medical malpractice cases.
In some medical malpractice cases, the defendant might argue that you are at least partially responsible for causing your own injuries by, for example, failing to follow the doctor's instructions. If you go to trial and are found to be partially liable, that finding can reduce or even eliminate your damage award, depending on state law.
Vermont follows a "modified comparative negligence" rule, which means that, if you are found to be partly responsible for causing your injuries, your award of damages will be reduced in proportion to your fault. If, for example, you were awarded $100,000 in damages, but were found to be 25 percent at fault, your damages would be reduced to $75,000. But if the jury finds that your share of the fault is equal to or greater than the defendant's, then you wouldn't be entitled to recover any damages at all.