Medical Malpractice

Medical malpractice, also known as medical negligence, is the third leading cause of death in the United States.

Liability in medical malpractice cases can be complicated. First, whether or not you can even file a case in Vermont depends on whether a medical expert can give you an opinion that the standard of care was violated. This statute requires that a plaintiff (or the plaintiff’s attorney) consult “a health care provider qualified pursuant to the requirements of Rule 702 of the Vermont Rules of Evidence and any other applicable standard,” and get an opinion based on the applicable standard of care. In other words, before filing a case, you need a qualified healthcare provider to say you have a case. The plaintiff or attorney must then file a compliance certificate with the complaint. If you don’t file a certificate of compliance with your case, then the court can and will dismiss your case. And that’s just to start.

Elements of a Medical Malpractice Claim

When you bring a medical malpractice claim in Vermont you must prove three things:

  1. The so-called “standard of care”;
  2. That the defendant did not meet the standard of care; and
  3. That the defendant’s failure to meet the standard of care caused your injuries.

That’s a very, very short version. Insurance companies defend medical malpractice cases vigorously. In a medical malpractice case, the insurance company will fight you every step of the way.

Injury Alone Isn’t Proof of Malpractice

Sometimes treatment doesn’t work. And sometimes, even when a doctor does things right, a person’s health diminishes. So, proving your injuries alone is not enough. You must prove that what the defendant health care provider did (or did not do) was malpractice (aka negligence). You must also prove that the provider’s malpractice injured you.

Judgment Errors

Sometimes, your medical-malpractice claim may rest on the defendant making the wrong choice. In other words, the doctor made a bad choice when the doctor had reasonable (and safer) alternative choices. This type of case can be very hard to prove because it depends on whether the doctor exercised “reasonable judgment” in making that decision. As the saying goes, “Reasonable minds can differ.” In a medical negligence case, you can count on the plaintiff and defense experts having very different definitions of “reasonable judgment.”

Lack of Informed Consent

In other cases, your medical malpractice case might depend on not having enough information about the risks, benefits, and alternatives to a specific treatment or procedure. This type of case typically can be summed up in one sentence: “Well, if I’d known that I never would have agreed to it!”

In order to prevail on a lack-of-informed-consent claim, you must prove three elements:

  1. The defendant didn’t tell you enough about the risks of, benefits of, and alternatives to the treatment or procedure; and
  2. If you had known about these risks, benefits and alternatives, you probably wouldn’t have agreed to the treatment or procedure; and
  3. The treatment or procedure caused your harm.

There are many instances, however, when a doctor (or other healthcare provider) doesn’t have to give a patient information about risks. For example: (1) when risks are widely known and not substantial; (2) if you said beforehand that you wanted the treatment or procedure regardless of the dangers involved; (3) if you told the defendant that you didn’t want to be told about the risks or about other options; (4) if it was emergency care and there wasn’t time to get informed consent; or (5) if someone in your position would’ve had the treatment or procedure even if the defendant had explained all of the risks beforehand.

Statutes of Limitation in Medical Malpractice (Generally)

Statutes of limitation are time limits that affect all personal-injury cases. In most personal-injury cases, the statute of limitations (or time limit) is three years. This means that you must file your personal-injury case in court within three years of the event. If you have a medical malpractice case, you must also file within three years, but there are a couple exceptions. First, there’s a “discovery rule.” This means if you find out about malpractice after the time limit has expired (or even before), then you have two years from the date of discovery to file a case in court. No claim can be filed more than seven years from the date of the alleged malpractice, however.

Second, if you are close to the time limit, there’s a provision in the certificate-of-merit statute that allows you to file a petition with the court for an additional 90 days to consult with a healthcare provider and comply with the statute.

If you suspect you have a medical malpractice case, you should contact a qualified medical malpractice attorney as soon as possible. Just the process of collecting your medical records and finding an expert willing to review your case can take several months.


This is just a brief overview of medical malpractice liability in Vermont. In any medical malpractice case, you must also prove damages. If you suspect you have a medical malpractice claim, you should speak with a qualified medical malpractice lawyer as soon as possible. If you’d like some help figuring out whether you have a case, you can request a consult with Martin Delaney & Ricci Law Group.