If you are thinking about filing a medical malpractice lawsuit in Vermont, you might be wondering about the state laws that might come into play in your case. Read on for some highlights of Vermont medical malpractice law.
All states have very specific deadlines for filing medical malpractice lawsuits, called statutes of limitations. These laws can be somewhat complex because they may contain as many as three or four separate deadlines, which we'll look at in the sections below.
The first part of the statute of limitations is the standard deadline in Vermont, which gives victims of medical malpractice three years to file a lawsuit after a medical malpractice-related injury occurs. If you do not file a medical malpractice lawsuit within three years after the malpractice occurred, you lose your right to sue relating to the incident -- unless you fall within one of the exceptions created by the other parts of the statute of limitations.
The second part of the statute of limitations is called the discovery rule. The discovery rule is an exception to the standard deadline in situations where the victim could not reasonably have learned that he/she even had a medical malpractice case. In Vermont, the discovery rule states that the malpractice victim shall have two years from the date the injury is -- or reasonably should have been -- discovered, whichever occurs later, within which to file a medical malpractice lawsuit.
The fourth part of the statute of limitations is sometimes called a statute of repose, which imposes an absolute deadline to medical malpractice claims, regardless of when the victim discovered them.
In Vermont, the statute of repose provides that no medical malpractice lawsuit may be commenced more than seven years after the alleged act of medical malpractice, with one exception for cases that are based upon the discovery of a foreign object in the patient's body. A malpractice lawsuit based on a foreign object inside the victim’s body may be filed within two years of the date of the discovery of the foreign object.
The third part of the statute of limitations is the deadline for minors (children under age 18) or their parents or legal guardians to file a medical malpractice lawsuit. In Vermont, the statute of limitations for minor children does not begin running until the minor child turns 18. Once the child turns 18, all of the parts of the statute of limitations (the standard deadline, the discovery rule, and the statute of repose) begin running.
Vermont has other exceptions to the statute of limitations that may apply in a medical malpractice case, depending on the circumstances. For example, in many cases, the statute of limitations may be extended if the defendant fraudulently concealed the malpractice, if the defendant left the state after committing the malpractice, or if the victim of malpractice was insane. The Vermont statute of limitations for medical malpractice cases can be found at the Vermont Statutes title 12, sections 521 and 551.
Most Vermont medical malpractice lawsuits must include a "certificate of merit" alongside the civil complaint (that's the document that starts the lawsuit).
In this certificate, the plaintiff (or the plaintiff's attorney) must state that he or she has consulted with a qualified medical expert (according to Vermont law) who has:
The full details of Vermont's "certificate of merit" requirement are spelled out at 12 V.S.A. section 1042.
Some states have caps or limits in the amount of the damages that can be awarded to a victim of medical malpractice. In Vermont, there is no such cap.
In some medical malpractice cases, the defendant may argue that you are at least in part liable 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 will reduce or even eliminate your damage award, depending on state law.
Vermont follows a “modified comparative negligence” rule. This means that, if you are found to be in part negligent with respect to your injury, illness, or medical condition, your award of damages is diminished in proportion to your fault. If, for example, you were awarded $100,000 in damages, but were found 20% at fault, your damages would be reduced to $80,000. However, if the jury finds that your fault is equal to or greater than the defendant’s fault, then you are not entitled to recover any damages, and your case is dismissed.
Finally, Vermont also has a procedure for voluntary arbitration of medical malpractice cases instead of a jury trial. If all parties agree, the medical malpractice claim will be heard by a panel of arbitrators.
This law can be found at Vermont Revised Statutes title 12, chapter 215. For further information about Vermont’s arbitration procedure, please refer to the statute or consult an experienced attorney.