Compared with other injury-related legal claims, a medical malpractice lawsuit is usually a fairly complex undertaking. That's true in every state, not just Vermont. Legal issues and medical evidence can get very complicated very quickly in these cases, and the plaintiff (the injured patient, or his or her legal representative) needs to understand the special procedural rules that come into play. In this article, we'll look at some key Vermont medical malpractice laws, including the "certificate of merit" requirement and the statutory lawsuit-filing deadline.
Like a lot of states, Vermont has a dedicated statute of limitations for medical malpractice lawsuits. But first, readers who aren't all that fluent in the language of "legalese" could probably use a little background information. A statute of limitations is a state law that sets a limit on the amount of time you have to file a lawsuit after you have suffered some type of loss or injury. The deadline is almost always expressed in years, and there are different time windows depending on the kind of case you want to file.
Vermont’s statute of limitations for medical malpractice cases, which is codified at Vermont Statutes Title 12 section 521, specifies that this type of case "shall be brought within three years of the date of the incident or two years from the date the injury is or reasonably should have been discovered, whichever occurs later." It's important to note that if you are relying on the "discovery" portion of the statute, as the plaintiff you have the burden of proving that you could not have "reasonably" discovered the malpractice until you actually did.
There is a larger catch-all deadline for filing a medical malpractice lawsuit in Vermont, which says that this kind of case must be filed "not later than seven years from the date of the incident." This is known as a "statute of repose," and it applies regardless of whether the patient had a reasonable opportunity to discover that he or she was harmed by a medical error. The key exception to this larger seven-year deadline is cases where a foreign object was left in a patient (after a surgical procedure, for example). In those situations, according to the Vermont statute, "the action may be commenced within two years of the date of the discovery of the foreign object,"and the larger seven-year deadline does not apply.
Vermont’s law makes clear that the time limit is very lenient in cases where the medical error was covered up via fraud: "No statute of limitations shall limit the right to recover damages for injuries to the person arising out of any medical or surgical treatment or operation where fraudulent concealment has prevented the patient's discovery of the negligence."
Finally, if Vermont's statute of limitations deadline has passed, and you try to file your lawsuit anyway, it’s a safe bet that the court will dismiss the case. That's why it's so important to understand and comply with the medical malpractice statute of limitations.
If you want to file a medical malpractice lawsuit in Vermont's civil court system, state law (specifically, 12 V.S.A. section 1042) says that the initial complaint (the document that sets out the injured patient's allegations and gets the lawsuit started) must be accompanied by a "certificate of merit."
In this filed document, the injured patient (typically through his or her attorney) must declare under oath that he or she has had a consultation with a qualified medical expert who has reviewed the patient's case and has:
A few more important details on the "certificate of merit" filing requirement in Vermont:
A lot of states have laws on the books that place a "cap" on medical malpractice damages, effectively limiting the amount of money that a successful plaintiff can receive, even after a jury has heard all the evidence at trial and found the defendant liable for medical malpractice.
There is currently no cap on compensation (economic, non-economic, or punitive damages) in medical malpractice cases in Vermont.
If you're looking for more specifics on Vermont's medical malpractice laws and how they apply to your potential case, it may be time to discuss your situation with an experienced medical malpractice attorney in your area.