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McClellan v. Haddock

Supreme Court of Vermont

March 7, 2017

Estella McClellan, Administrator of the Estate of Betty Jo McClellan
v.
Jeffrey E. Haddock, M.D. And Thomas Chittenden Health Center, PLC

         On Appeal from Superior Court, Chittenden Unit, Civil Division Helen M. Toor, J.

          William L. Durrell of Bookchin & Durrell, P.C., Montpelier, for Plaintiff-Appellant.

          Craig S. Nolan and Kevin A. Lumpkin of Sheehey Furlong & Behm P.C., Burlington, for Defendants-Appellees.

          PRESENT: Reiber, C.J., Dooley, Skoglund and Eaton, JJ., and Teachout, Supr. J., Specially Assigned

          SKOGLUND, J.

         ¶ 1. Plaintiff in this wrongful-death action appeals from a trial court judgment dismissing her complaint as untimely. Plaintiff contends the trial court erred in: (1) denying her motion to amend the complaint to include a certificate of merit; (2) declining to treat the motion to amend as a petition to extend the statute of limitations; and (3) dismissing a claim for personal injuries incurred during the decedent's lifetime. We affirm.

         ¶ 2. As this appeal is from dismissal of a complaint, we assume all well-pled allegations to be true. Richards v. Town of Norwich, 169 Vt. 44, 48-49, 726 A.2d 81, 85 (1999). On May 18, 2013, plaintiff's adult daughter died from a lethal combination of prescription and nonprescription drugs. On May 15, 2015, three days before the expiration of the two-year statute of limitation for wrongful-death actions, plaintiff filed a complaint against her daughter's treating physician and his employer alleging that the physician had negligently prescribed multiple doses of sedatives and opiates which, taken in combination, caused her death. Service of the complaint was complete on June 18, 2015.

         ¶ 3. In July 2015, defendants moved to dismiss the complaint for failure to file a certificate of merit, as required by statute. The statute in question provides:

(a) No civil action shall be filed to recover damages resulting from personal injury or death occurring on or after February 1, 2013, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action files a certificate of merit simultaneously with the filing of the complaint. In the certificate of merit, the attorney or party shall certify that he or she has consulted with a health care provider qualified pursuant to the requirements of Rule 702 of the Vermont Rules of Evidence and any other applicable standard, and that, based on the information reasonably available at the time the opinion is rendered, the health care provider has:
(1)described the applicable standard of care;
(2)indicated that based on reasonably available evidence, there is a reasonable likelihood that the plaintiff will be able to show that the defendant failed to meet that standard of care;
(3)indicated that there is a reasonable likelihood that the plaintiff will be able to show that the defendant's failure to meet the standard of care cause the plaintiff's injury.

12 V.S.A. § 1042(a) (emphasis added). The statute provides further that "failure to file the certificate of merit as required by this section shall be grounds for dismissal of the action without prejudice, except in the rare instances in which a court determines that expert testimony is not required to establish a case for medical malpractice." Id. § 1042(e). There is also a savings clause in the statute for claims that may expire before acquiring the necessary expert opinion: "Upon petition to the clerk of the court where the civil action will be filed, an automatic 90-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by this section." Id. § 1042(d).

         ¶ 4. In their motion to dismiss, defendants asserted that plaintiff had failed to "file a certificate of merit simultaneously with the filing of the complaint, " as required by § 1042(a); that plaintiff had not alleged that the complaint fell within the "rare" category of cases in which expert testimony is not required, under § 1042(e); that plaintiff could not request a "90-day extension of the statute of limitations" under § 1042(d) because the statute had already expired; and therefore, that defendants had established the requisite "grounds for dismissal" under § 1042(f).

         ¶ 5. In opposing the motion, plaintiff conceded that her attorney had not filed a separate certificate of merit but asserted that the "complaint itself incorporate[d]" the statutory requirements.[1] Plaintiff relied, in this regard, on the complaint's allegations that defendants had breached professional standards of care resulting in decedent's demise; that plaintiff's counsel had signed the complaint, implicitly verifying that there was evidentiary support for the allegations; and that plaintiff's counsel had already provided defendants' counsel with a copy of her expert's preliminary opinion.

         ¶ 6. Plaintiff also filed a motion to amend the complaint to add a certificate of merit. Plaintiff claimed an absolute right to amend under Vermont Rule of Civil Procedure 15(a), [2] and argued that the amendment containing the certificate should "relate back to the time of the filing of the original complaint" for purposes of compliance with the statute of limitation. Defendants opposed the motion, maintaining that the filing of a complaint without a certificate of merit was insufficient to toll the statute of limitations, and that granting the motion to amend would defeat the statutory purpose of eliminating meritless complaints before subjecting defendants to the time, expense, stigma, and anxiety of unwarranted litigation. In addition to the issues raised by the parties, the court requested briefing on whether it could "treat the motion to amend as the equivalent of a request for a 90-day extension" under the statute.

         ¶ 7. The trial court heard argument on the motions in November 2015 and issued a written ruling later that month. The court initially rejected plaintiff's claim that the complaint itself had effectively "incorporated" the certificate of merit requirements, observing that, even if it could be considered the equivalent of a certificate, the complaint did not describe the applicable standard of care or even allege that a qualified medical professional had been consulted. The court also ruled that the "one-page preliminary report" provided to defendants lacked the specific statutory elements required of a certificate of merit.

         ¶ 8. As to plaintiff's motion to amend, the court concluded that Rule 15 was inapplicable because plaintiff was not seeking to add a party or claim to the complaint that might relate back to the date of the original filing, but rather to add a certificate "entirely independent of the complaint itself." The court also agreed with defendants that routinely permitting plaintiffs to amend a complaint unsupported by the requisite certificate of merit would defeat the statute's purpose by subjecting defendants "to the burden of hiring a lawyer, filing an answer, having a publicly available court case pending against him or her, and undergoing the stress of being the subject of a lawsuit" with no assurance of its merit.

         ¶ 9. Nor, finally, was the court willing to consider the motion to amend as the equivalent of a ninety-day extension request under § 1042(d) because the statute plainly required that the request be filed before filing the complaint, not after. This was evident, the court reasoned, from the plain language of the statute, which requires that the ninety-day extension request be filed with the clerk of the court "where the civil action will be filed." 12 V.S.A. § 1042(d) (emphasis added). In short, the court concluded that, although the Legislature could have provided otherwise as other states had done, our statute plainly required the filing of a certificate of merit "simultaneously" with the filing of a complaint; that plaintiff failed to comply with this requirement; and that dismissal was therefore warranted. Because the statute of limitations had expired, the court dismissed the complaint with prejudice and entered judgment for defendants.

         ¶ 10. Plaintiff subsequently moved for reconsideration, raising an additional argument. Plaintiff claimed that a certificate of merit was not required in this case because her complaint included a "survival action" for personal injuries suffered by the decedent before the statutory start date of February 1, 2013. See Id. § 1042(a) (requiring simultaneous filing of certificate of merit with complaint in any medical malpractice action "to recover damages resulting from personal injury or death occurring on or after February 1, 2013" (emphasis added)). The trial court denied the motion, finding that "[t]he only harm alleged in the complaint is the death, " and that "there are no allegations of injury prior to that date." This appeal followed.

         ¶ 11. Plaintiff first renews her belated claim that a certificate of merit was not required because the complaint sought recovery for injuries suffered by the decedent before February 1, 2013.[3] The trial court correctly rejected the argument. As noted, plaintiff's complaint alleged, in relevant part, that decedent "was drugged to death" as a result of defendants' negligence "in prescribing large quantities of both sedatives and opiates" and other drugs. Under the caption "Legal Claims, " the complaint alleged:

33. As a direct and proximate consequence of [defendant's] negligence, the Decedent died.
34. The Decedent and her Estate have suffered damages as a result.
35. The institution of this action by the Plaintiff against Defendants . . . is for the purpose of recovering all the damages available to the heirs of Plaintiff's Decedent resulting from ...

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