In its decision filed on October 9, 2015, the Vermont Supreme Court overturned the lower court’s granting summary judgment in favor of the defendant ophthalmologist, concluding that in the plaintiff’s medical expert’s opinion that (1) there was at least a fifty-one percent chance that the plaintiff would have had some meaningful degree of vision in his left eye if he had received a timely referral from the defendant ophthalmologist to a retinologist, (2) that a reasonably skillful ophthalmologist would have referred the plaintiff to a retinologist, and (3) that the defendant ophthalmologist’s failure to do so caused the vision loss in the plaintiff’s left eye, is sufficient evidence to withstand a motion for summary judgment.
The Alleged Underlying Facts
The defendant ophthalmologist performed an elective procedure to remove a cataract from the plaintiff’s left eye. Within twenty-four hours of the cataract surgery, the plaintiff’s left eye showed signs of infection. The defendant ophthalmologist made a presumptive diagnosis of endopthalmitis, but did not refer the plaintiff to a retinologist for treatment. Within forty-eight hours of surgery, the plaintiff was permanently blind in his left eye, which he attributed to Enterococcus faecalis, an infectious organism.
The plaintiff’s Vermont medical malpractice lawsuit alleged that the defendant ophthalmologist, and his medical practice, breached their duty of care by failing to adequately and timely recognize, diagnose, and treat the plaintiff’s eye infection, including the defendants’ failure to consult with a retinologist regarding the necessity for the plaintiff to undergo an immediate pars plana vitrectomy.
The defendants filed their motion for summary judgment, and the trial court subsequently granted the motion, finding that the plaintiff’s medical expert’s testimony amounted to loss-of-chance evidence insufficient to prove that plaintiff’s injury was caused by the defendants’ departure from the standard of care.
Vermont Does Not Recognize The Loss Of Chance Doctrine
Under the loss-of-chance doctrine, the plaintiff would be compensated for the extent to which the defendant’s negligence reduced the plaintiff’s likelihood of achieving a better outcome, notwithstanding the fact that the likelihood may have been reduced by less than fifty-one percent.
However, Vermont does not recognize the loss of chance doctrine. The Vermont Supreme Court stated that the loss-of-chance doctrine is fundamentally at odds with the settled common law standard for establishing a causal link between the plaintiff’s injury and the defendant’s tortious conduct.
12 V.S.A. § 1908, which addresses the requirements concerning bringing a malpractice case against a medical professional in Vermont, states, in part: “[T]he plaintiff shall have the burden of proving: … (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.” The Vermont Supreme Court stated that Section 1908 essentially codifies the common law elements of a medical malpractice action, which have traditionally included a requirement that the plaintiff adduce evidence of a reasonable probability or reasonable degree of medical certainty that the defendant’s conduct caused the injury.
The Vermont Supreme Court’s Decision
In the case it was deciding, the Vermont Supreme Court stated that the plaintiff’s expert’s opinion was that a vitrectomy would have resulted in “[s]omething that was substantially better than [the plaintiff] ended up with,” calling it “functional vision” in his left eye if the plaintiff had been treated with a vitrectomy and antibiotics (the plaintiff’s expert, who is a board-certified ophthalmologist and nationally recognized expert, defined “functional vision” as vision that would have enabled the plaintiff to read large print).
The Vermont Supreme Court stated that reading the plaintiff’s expert’s deposition testimony in its entirety, the expert rendered the expert opinion that there was at least a fifty-one percent chance that the plaintiff would have had some meaningful degree of vision in his left eye if he had received a timely referral to a retinologist, which testimony articulates a theory of the case sufficient to withstand summary judgment (the theory being that a reasonably skillful ophthalmologist would have referred the plaintiff to a retinologist, and the defendants’ failure to do so caused the vision loss in the plaintiff’s left eye; in other words, a factual assertion exists in the case that but for the defendants’ departure from the standard of care exercised by a reasonably skillful ophtalmologist, the plaintiff would not have suffered an injury).
The Vermont Supreme Court therefore held that the plaintiff’s expert’s deposition testimony is sufficient evidence to withstand a motion for summary judgment, and the Vermont Supreme Court reversed the lower court granting summary judgment in favor of the defendants and remanded the case to the lower court.
Source Tillson, et al., v. Lane, et al., 2015 VT 121, No. 2014-382.
If you or a family member were injured by an eye doctor (ophthalmologist) in Vermont or in another U.S. state, you should promptly find a Vermont medical malpractice lawyer or a medical malpractice lawyer in your state who may investigate your ophthalmologist malpractice claim for you and represent you in an ophthalmologist malpractice case, if appropriate.
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