Vermont Medical Malpractice Summary

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Statutes of Limitations

A medical malpractice claimant must bring suit within three years from the date of the alleged malpractice or within two years from the date upon which the claimant knew or should have known of the alleged injury, whichever is later, subject to a seven-year statute of repose. Vt. Stat. Ann. tit. 12, § 521 (Supp. 1997). The seven-year statute does not apply to cases of fraudulent concealment, and it contains an exception for cases involving foreign objects, for which the limitations period is two years from the date of the discovery of such object. Id. With respect to incompetents, Vermont provides the same periods of limitation as described above, and such periods begin to run following the removal of the disability. Vt. Stat. Ann. tit. 12, § 551 (Supp. 1997).

Contributory or Comparative Negligence

Vermont has adopted the doctrine of modified comparative negligence. Under this doctrine, a claimant’s action is barred if his negligence is greater than the combined negligence of all defendants. Otherwise, the claimant’s recovery is diminished in proportion to his degree of negligence. Vt. Stat. Ann. tit. 12, § 1036 (Supp. 1997).

Joint and Several Liability

Joint tortfeasors are not jointly and severally liable, but rather are only severally liable. Vt. Stat. Ann. tit. 12, § 1036 (Supp. 1997). Thus, a joint tortfeasor is liable only for that portion of a judgment which is equal to the proportion the tortfeasor’s fault bears to the joint tortfeasors’ combined fault.

Contribution

Vermont does not afford joint tortfeasors a right to contribution. Murray v. J & B International Trucks, Inc., 146 Vt. 458, 508 A.2d 1351 (1986).

Vicarious Liability

Vermont courts have not applied the doctrine of ostensible or apparent agency as a means of imposing liability on a hospital for the negligence of its independently-contracted physicians.

Expert Testimony

Medical malpractice claimants must offer expert testimony with respect to the applicable standard of care, unless the alleged negligence is so apparent as to be comprehensible to an average juror. Senesac v. Associates in Obstetrics & Gynecology, 141 Vt. 310, 449 A.2d 900 (1982).

Damage Caps

Vermont does not place a cap on the amount of damages a claimant may recover in a medical malpractice action.

Statutory Cap on Attorneys’ Fees

Vermont does not place a limit on attorneys’ fees in a medical malpractice actions.

Periodic Payments

The use of periodic payments in medical malpractice actions is not mandated by Vermont law.

Collateral Source Rule

In Vermont, the collateral source rule is applicable and, thus, payments received by the claimant from collateral sources may not be offered as evidence to reduce the claimant’s recoverable damages. Hall v. Miller, 143 Vt. 135, 465 A.2d 222 (1983).

Pre-Judgment Interest

Pre-judgment interest should be added to compensatory damages in tort actions. D’Arc Turcotte v. Estate of LaRose, 153 Vt. 196, 569 A.2d 1086 (1989). However, this rule does not extend to punitive damages or to certain damage elements in personal injury actions where the damages are rarely ascertainable at the time of injury, such as pain and suffering or permanent impairment. Id.

Patient Compensation Funds and Physician Insurance

Vermont does not have a patient compensation fund, and it does not require its licensed physicians to carry professional liability insurance.

Immunities

Pursuant to statute, the state has waived its sovereign immunity. Vt. Stat. Ann. tit. 12, § 5601 (Supp. 1997). The state’s liability is limited to $250,000 per claimant and $1,000,000 per occurrence. Id. This statutory limitation on liability with respect to the state does not apply to the extent that the state carries applicable insurance. Id.

The immunity of municipalities and counties is waived to the extent of their applicable liability insurance. Vt. Stat. Ann. tit. 29, § 1404 (Supp. 1997).

Arbitration

Medical malpractice claims arising on or after July 1, 1995, must be submitted to an arbitration panel prior to the commencement of a trial. The panel’s findings are appealable unless the parties agree that arbitration shall be binding. Vt. Stat. Ann. tit. 12, § 7002 (Supp. 1997).

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Revision Date: February 6, 1998