2015 VT 121
By Andrew Delaney
Summary judgment can be an abrupt end to a case. If it’s granted, you never get to see a jury; your case never really gets heard in court. A judge simply reviews the file and decides one way or another who wins. But sometimes, summary judgment is premature.
Mr. Tillson got a cataract in his left eye surgically removed by Dr. Lane. Mr. Tillson’s eye showed signs of infection within 24 hours. Dr. Lane presumptively diagnosed endopthalmitis but didn’t make a referral, and within 48 hours of the surgery, Mr. Tillson was permanently blind in his left eye.
So, Mr. and Mrs. Tillson filed a medical malpractice suit for pain and suffering, stress, medical bills, loss of consortium, and economic losses. They alleged that Dr. Lane and Lane Eye Associates “breached their duty of care by failing to ‘adequately and timely recognize, diagnose, and treat the infection.’”
The Tillsons’ expert doctor’s opinion was that Mr. Tillson should’ve received more aggressive treatment given the presumptive endopthalmitis diagnosis. The defendants deposed plaintiffs’ expert and he essentially said that Mr. Tillson would’ve had a real chance of saving his eye with the proper treatment versus no real chance without it. In response to a follow-up question from plaintiffs’ counsel, the doctor opined that it was “more likely than not” that Mr. Tillson would’ve had a favorable outcome with proper treatment.
So the defendants moved for summary judgment and the trial court granted the motion, concluding that the Tillsons’ expert’s opinion amounted to “loss-of-chance” evidence and was therefore “insufficient to prove that plaintiffs’ injury was caused by defendants’ departure from the standard of care.”
The Tillsons appeal. The SCOV can do whatever it wants when it reviews a grant of summary judgment. First, it has to determine whether there are any genuine issues of material fact. If there aren’t any, then we look at whether any party is entitled to judgment as a matter of law. All reasonable doubts go to the nonmoving party.
The SCOV first talks about the so-called “loss-of-chance” doctrine—the idea is that the plaintiff should be compensated to the extent the defendant’s negligence reduced the plaintiff’s chance of receiving a better outcome. While the doctrine has gained traction inn other states, Vermont has declined to follow it. Part of the reason for this is that the medical negligence burden-of-proof statute in Vermont requires proof of proximate cause. Thus, while the SCOV certainly seems to indicate a willingness to consider the loss-of-chance doctrine (my read), it is not so willing to act contrary to legislative mandate. The SCOV reached that conclusion already in a 2003 case.
The SCOV considers this case in context of that case. In that case, the experts ultimately placed the plaintiff’s chance of recovery from his condition at below 50%. Here, the plaintiffs’ expert testified that it was “more likely than not” that Mr. Tillson would’ve had a favorable outcome with proper treatment.
The SCOV acknowledges that some of the expert testimony is equivocal. But the SCOV also acknowledges the potentially harsh consequences of summary judgment and emphasizes the need to give the nonmoving party the benefit of the doubt.
“Dr. Javitt’s statements at deposition indicate his opinion that Mr. Tillson’s total loss of vision in his left eye would not have occurred if timely referral had been made to a retinologist.” In other words, “but for” Dr. Lane’s failure to make a referral, Mr. Tillson wouldn’t have lost all vision in his left eye. The SCOV concludes that this sufficiently articulates a theory of the case that can withstand summary judgment.