Vermont Medical Malpractice Laws

Vermont is one of the states with the lowest number of paid medical malpractice claims. According to data collected by the National Practitioner Data Bank, there were only 10 medical malpractice payments (settlements and judgments) made in Vermont for the year 2022, totaling $5.86 million. From January to June 30, 2023, only four medical malpractice payouts were reported, amounting to $3.65 million.  

It must be noted that Vermont has a small population and encourages mediation and arbitration, which contributes to its low case count. 

Given that medical malpractice payouts in Vermont are low, it was no surprise that the case of fertility doctor John Boyd Coates became national news. Coates was accused of inseminating two women with his own sperm without their consent. A jury verdict was reached in 2022, awarding plaintiff Cheryl Rousseau punitive damages of $5 million and compensatory damages of $250,000. 

This article seeks to provide information on the basic concepts and Vermont laws related to medical malpractice. You can find details on what is considered medical malpractice, who can be held liable, what damages you can claim, and when you should file the lawsuit. 

What Qualifies as Medical Malpractice in Vermont?

In simple terms, medical malpractice is the failure of a healthcare provider to deliver an acceptable standard of care, resulting in harm to a patient. The keywords here are acceptable and standard. Simply having unsatisfactory results or sustaining injury under a healthcare provider’s care is not enough for an individual to claim medical malpractice. 

Vermont law does not require physicians to be infallible. There could be multiple treatment options for a medical condition. If the physician used the currently acceptable standard of care to select the treatment resulting in injury, it is not necessarily a medical malpractice case. 

The law will require the plaintiff to establish several elements to prove medical malpractice, which will be discussed in another section of this article. If you have suffered harm after a medical procedure and think it may be due to a healthcare provider’s negligence, it is best to consult an attorney. 

Some of the most common cases of medical malpractice are:

• Surgical errors.

• Dental errors.

• Birth injuries.

• Brain injuries.

• Spine injuries.

• Incorrect diagnosis or failure to diagnose.

• Incorrect medication or dosage.

• Unnecessary treatment.

• ER injuries.

• Defective medical devices or incorrect use of devices.

Absence of Informed Consent

Another case of medical malpractice is if the healthcare provider fails to obtain the patient’s informed consent. This does not only mean that the healthcare provider failed to get the patient’s signature on the informed consent form. This also applies when a healthcare provider fails to disclose risks, benefits, and alternatives that a reasonable healthcare provider would, so the patient can make a knowledgeable decision. 

Who Can You Sue for Medical Malpractice in Vermont?

Any healthcare professional licensed to provide healthcare services in Vermont may be held liable for medical malpractice, including the following:

• Physicians.

• Surgeons.

• Nurses.

• Physician/dental assistants.

• Dentists.

• Chiropractors.

• Podiatrists.

• Pharmacists/pharmacies.

• Psychologists.

• Therapists/counselors.

• Hospitals/medical clinics.

The majority of Vermont medical malpractice lawsuits with reported compensation payouts to claimants or plaintiffs from 2012 to 2022 involved physicians and dentists, followed by Doctors of Osteopathic Medicine and physician assistants.

Good Samaritan Law

Vermont’s Good Samaritan Law shields from civil liability any person who provides assistance to another who is in grave physical danger. That is, unless the helping person acts with gross negligence in the process or is paid to provide the assistance. This means if a medical professional commits an error during an emergency situation while in their place of employment, for example, the hospital ER, the Good Samaritan Law will not shield them from liability. The erring professional can be sued for medical malpractice in this situation, even if it is an emergency.

Limited Liability of the State

Most states have sovereign immunity laws, which prevent them from being sued for liability. The Vermont Tort Claims Act waives this immunity, allowing individuals to sue the state for the negligence of its employees. 

However, limits are imposed on the amount of damages that the claimant or plaintiff can collect. A single claimant can receive no more than $500,000, while multiple claimants for a single occurrence of negligence can collectively receive a maximum amount of $2 million. 

Limited Liability of Municipalities and Counties

While the Tort Claims Act waives the state’s sovereign immunity from civil liability, the waiver provides for some exceptions when it comes to political subdivisions, such as counties and municipalities. 

This is because in Vermont, counties and municipalities may be sued only if they purchase liability insurance, and the compensation that the plaintiff may recover is only up to the limit of the insurance coverage. So, if a county’s or municipality’s liability insurance covers only up to $300,000 in damages, it can be sued only for up to that amount.  

Medical Malpractice Liability Insurance Requirements

Physicians in Vermont are required by most hospitals and medical centers to carry medical malpractice liability insurance before being allowed to admit patients. However, some healthcare employers provide insurance to their employees, mostly paramedics and EMTs.  

The common liability coverage requirement in the state is $1 million per malpractice claim, with a collective cap of $3 million per year. 

Insurance rates in Vermont are generally lower than in other states and generally uniform because most insurers treat Vermont as a single territory. This means that a physician’s insurance rate will not be significantly impacted if they move their practice to another location within the state. 

What Is the Statute of Limitations in Vermont for Medical Malpractice Cases?

To file a case, Vermont Statutes Annotated Section 521 gives a three-year deadline from the date the medical malpractice occurred or two years from the time the malpractice should have been reasonably discovered. 

The statute of repose, or the maximum time you have to file a medical malpractice case, is seven years from the date the negligent act occurred, regardless of when it was discovered. 

If the malpractice resulted in death, a wrongful death case must be filed within two years of the victim’s passing. 

Exemptions

Vermont provides an exemption for medical malpractice cases where the patient was prevented from discovering the medical error through deliberate concealment. No statute of limitations is applied in these cases.

Another exemption is given to cases involving foreign objects left inside a patient’s body. This type of error may take many years to be discovered. So, the patient is given two years from the date the foreign object was discovered to bring a medical malpractice case.

Extended Statute of Limitations for X-Ray Overexposure

A separate statute of limitations applies to cases of ionizing radiation injury or X-ray due to the injury’s latent nature. X-ray overexposure may lead to multiple injuries, such as cell and tissue damage and cancer, which may take more than five years before manifesting symptoms. 

Under Vermont Statutes Annotated Section 518, victims have three years from the date the injury and its cause were discovered or should have been discovered to file the case. The statute of repose is 20 years after the occurrence of the last injury attributed to X-ray overexposure.

What Do You Need to Prove in a Vermont Medical Malpractice Case?

As previously mentioned, having sustained an injury is not enough to claim medical malpractice. The Vermont Statutes Annotated Title 12 Section 1908 lays out three elements that the plaintiff in a medical malpractice case must prove:

• The degree of care, skill, or knowledge normally exercised by a prudent and competent healthcare provider working in the same practice for the same situation within Vermont. This element establishes the acceptable "standard of care."

• That the defendant healthcare provider failed to provide or lacked this degree of care, skill, or knowledge.

• That this failure or omission on the healthcare provider’s part directly resulted in the plaintiff’s injury, which would not have occurred if the standard of care had been exercised. 

Exception for Cases of Informed Consent

Under Vermont Statutes Annotated Section 1909(b), no one can claim medical malpractice on the grounds of failure to obtain informed consent if the circumstances in question were a medical emergency. 

”I’m Sorry" Law

A healthcare provider expressing regret for a plaintiff’s injury or the result of a medical procedure does not establish medical malpractice. Vermont law deems oral expressions of apology or good faith explanations of the medical error made within 30 days of the error or when the error should have been discovered inadmissible as proof of the healthcare provider’s liability. This rule is applicable regardless of who made the apology — the provider themselves or someone else on behalf of the provider.

Certificate of Merit

Medical malpractice cases in Vermont must be filed along with a Certificate of Merit. The certificate serves as proof that a qualified medical expert has reviewed the available evidence and determined that a breach of the standard of care likely occurred and that the claimant would be able to establish that this breach directly resulted in the injury. 

At the very least, the medical expert must have a current license to practice and board certification in the same specialty as the healthcare provider named in the complaint.

The purpose of the Certificate of Merit is to eliminate unqualified malpractice claims early on. Failure to include a Certificate of Merit with the case filing may lead to the case’s dismissal. For medical malpractice cases based solely on the lack of informed consent, however, the requirement for the certificate does not apply. 

Voluntary Arbitration

Parties in a medical malpractice case in Vermont are encouraged to go through arbitration before filing a lawsuit or proceeding to trial. Arbitration helps reduce trial costs and time and has resulted in the settlement of 98% of cases. 

The parties must sign an agreement not to proceed with the lawsuit unless the claim is withdrawn from arbitration or one of the parties stops participating in the arbitration proceedings.

How Much Can You Sue for Medical Malpractice in Vermont?

Data from the National Practitioner Data Bank for a 10-year period (2012–2022) shows that the average compensation payout in medical malpractice cases in Vermont is $363,312. There are several factors that affect the amount of compensation, including:

• Age of the claimant or plaintiff.

• Nature of malpractice.

• Severity of the injury and its impact on the claimant’s or plaintiff’s life.

• Current and future expenses for medical care.

• Strength of the supporting evidence and medical expert’s testimony.

• Skill of the medical malpractice attorney and their fees.

If you have a medical malpractice claim, an attorney can evaluate the value of your case by collecting receipts and hospital bills and using expert witnesses to determine the potential impact of the injury and its related costs. 

For example, a physician can testify about how an injury can cause a disability and for how long. This information can help calculate how much income you may lose and how much more funds you will need for medical care. 

The attorney can also present family and friends to testify about how the injury has affected your life and your personal relationships. These testimonies help put a dollar value on your non-economic damages.

Types of Damages

Plaintiffs in Vermont medical malpractice cases can seek compensation for economic and non-economic damages:

• Economic damages are the calculable impact of the injury, including lost income and expenses for medical treatments, medications, nursing, and therapy.  

• Non-economic damages refer to intangible effects such as loss of consortium with a spouse, loss of life enjoyment, and pain and suffering. 

• Punitive damages in medical malpractice cases are rare in Vermont and reserved only when there is evidence of ill will, insult, oppression, or a wanton disregard of the plaintiff’s rights. The purpose of punitive damages, therefore, is to punish the defendant, not compensate the plaintiff.

Vermont does not limit the damages that a plaintiff can recover in a medical malpractice case, except where the claim is made against the state. 

Negligence System

If a plaintiff is partially at fault for their injury, this may significantly impact the amount of compensation they will receive because of the state's modified comparative negligence rule. 

This rule reduces the compensation in proportion to the plaintiff’s fault. For example, if you are to be awarded $300,000 in damages but are found to be 20% at fault, your award will also be reduced by 20% to $240,000.

A real-life example is the case of Quirion v. Forcier. The court determined that the physician was not exclusively liable for the injury due to the plaintiff’s concealment of his long-term marijuana use. This failure to disclose important medical information affected the physician’s ability to correctly diagnose heart issues in the plaintiff. 

Methods of Obtaining Compensation

One of the reasons why there are relatively few medical malpractice lawsuits in Vermont is the state’s push for alternative dispute resolution methods like arbitration and mediation. Note that going through ADR is a recommendation, not a mandate. The parties can choose to undergo ADR before filing the lawsuit or before the lawsuit reaches the trial stage. If they fail to reach a settlement through ADR, the final avenue to obtain compensation is through a court trial.

Arbitration involves submitting the claim to a three-person arbitration panel composed of a healthcare provider in the same area of practice as the claim respondent, a layperson, and a court-appointed judicial referee. Arbitration is much like a trial where a neutral third party, the arbitrator, reviews the evidence, hears the parties’ arguments, and makes a decision regarding the case. 

Mediation, on the other hand, requires the parties to work with a neutral third party, the mediator, who will help the parties reach an amicable agreement regarding the case. 

How Much Does It Cost to Pursue a Medical Malpractice Case in Vermont?

Most medical malpractice attorneys in Vermont take cases on a contingency fee basis. That is, the attorney only gets paid for their services and expenses if they successfully secure compensation for the client through a settlement or verdict. The attorney will then collect a percentage of the client’s compensation as payment.  

The typical contingency fee is 33%–45%. Vermont does not put a limit on attorney’s fees, but it prohibits attorneys from charging unreasonable amounts. The standards of “reasonableness” are stipulated in Vermont Rules of Professional Conduct Rule 1.5.

When it comes to court fees, the filing fee for a civil case in Vermont is around $300. You may also have to pay a service fee for the service of papers to the respondent. If you do not have the financial capacity to pay, you can submit an application to waive filing fees and service costs along with your case filing. The court clerk will get back to you if your application for the waiver is approved.

Legal Resources for Medical Malpractice Victims in Vermont

Below are some resources that can provide guidance or practical assistance to victims of medical malpractice in Vermont.

Vermont Bar Association’s Lawyer Referral Service

The Vermont Bar Association’s Lawyer Referral Service connects you with qualified attorneys in the state who can handle your medical malpractice case. If you are unable to afford legal services, the association can also refer you to a public program that can provide assistance. You can contact the Referral Service at 1-800-639-7036. 

Brain Injury Alliance of Vermont

The Brain Injury Alliance of Vermont maintains a directory of providers that particularly cater to the needs of brain injury victims, including attorneys and healthcare professionals. The alliance also organizes educational events, training, and support groups aimed at helping those with brain injuries live a normal life. It can be reached at (803) 244-6850 or support@biavt.org.

Vermont Free Legal Answers

Vermont Free Legal Answers is a free online legal advice clinic for low-income individuals. You can submit your specific legal questions through its website and receive answers from a qualified lawyer. The lawyers can only provide advice and not represent you or help you with case filing. This resource does not provide assistance for criminal law matters. 

Vermont Board of Medical Practice

The Vermont Board of Medical Practice conducts investigations into the unprofessional conduct of physicians, physician assistants, and podiatrists. If you have experienced such conduct from a healthcare provider, you can submit a completed Complaint Form and Authorization for Release of Medical Records Form to the board. 

The forms can be emailed to AHS.VDHMedicalBoard@vermont.gov or mailed to the Vermont Board of Medical Practice, 108 Cherry Street, P.O. Box 70, Burlington, VT 05402. You can call the board at (802) 657-4220 for assistance. You can also look up the license status of a healthcare provider through the board’s website.