MONTPELIER, Vt. (Legal Newsline) - A woman who sued over the suicide of a man in prison can’t proceed with her lawsuit because she failed to include an expert medical opinion with her initial complaint, the Vermont Supreme Court ruled, in a decision that drew a dissent from the court’s chief justice, who said it represented the “rare instance” when the rules should be bent.
Joshua Bittner was arrested in February 2017 and held for lack of bail at Northwest State Correctional Facility. Based on prior evaluations, the Vermont Department of Corrections knew of Bittner’s mental health problems and assigned a counselor to perform an emergency psychiatric evaluation. Bittner said he suffered from depression and felt suicidal, and was placed in segregated housing on a 15-minute watch.
Two weeks later, Bittner was transferred to Northern State Correctional Facility. His transfer note said he was in active detoxification, was taking antidepressants and had a mental health diagnosis, but did not include what the lawsuit described as a “mental health alert.” After another medical evaluation, he was placed in regular housing and after 10 days, he hanged himself in his cell.
Bittner’s estate administrator Renee Bittner sued the state, mental-health services provider Centurion of Vermont and various individuals for medical malpractice, claiming they failed to prevent Bittner’s suicide.
Vermont, like many states, requires plaintiffs in medical malpractice cases to include a certificate of merit from a medical professional explaining how the defendants deviated from the standard of care. The law is intended to deter meritless lawsuits that are nevertheless expensive to defend and can spur needless settlements.
Renee Bittner failed to include a COM in her initial complaint in February 2019 and then asked for an extension of the statute of limitations so she could obtain one. The judge denied the request because she filed the documents in the wrong order; plaintiffs must request the extension and file a complaint only when they have a COM.
The defendants moved to dismiss the case and the trial court agreed that would ordinarily be required under Vermont law. The judge asked for briefing on whether the case represented the “rare instance” where the facts are so obvious a lay jury can determine whether malpractice occurred. After additional briefing the lower court denied the motion to dismiss because it couldn’t determine from the initial complaint if the exception applied.
The defendants filed an interlocutory appeal and the Vermont Supreme Court reversed, reaffirming a hard rule that virtually every medical malpractice suit must be accompanied by a COM.
The high court has consistently rejected the argument a complaint could be amended with a COM because that would be “fundamentally inconsistent” with the purpose of the statute. The COM requirement was adopted because “health care providers were being burdened by meritless lawsuits and that the `eventual dismissal’ of such suits `was an ‘inadequate remedy’’ for the associated professional and personal costs,” the majority ruled, in an opinion by Justice Harold Eaton.
“A court cannot exempt a plaintiff from the COM requirement unless it affirmatively determines from the four corners of the initial complaint that expert testimony is unnecessary,” the opinion said.
The “rare instance” exception “only applies where the violation of the standard of medical care is apparent to a layperson based on the allegations of the complaint alone.” The court cited examples such as leaving a loaded gun in the presence of a mentally ill person, or placing a suicidal patient in a second-floor room with an openable window.
This case involved complex medical and psychiatric issues and even the plaintiff apparently agreed an expert opinion was needed, since she asked for more time to obtain one, the court noted.
“Assuming the truth of all the allegations in plaintiff’s complaint, no jury could find proximate cause without expert testimony here,” the court concluded.
Justice Beth Robinson dissented in part, joined by Chief Justice Paul Reiber. Bittner should have been allowed to continue with a lawsuit against the Department of Corrections and Centurion because they failed to include an intra-system mental health alert in his file when he was transferred to Northern State, Robinson wrote.
“I recognize that this is a close case,” Robinson wrote, but “a jury could reasonably conclude that more complete information about Mr. Bittner’s recent mental health history” could have prevented his death.
Robinson has been nominated to take a spot on the U.S. Court of Appeals for the Second Circuit by President Joe Biden.