Dow Tillson and Susan Tillson v. Richard A. Lane, M.D. and Lane Eye Associates, 133 A.3d 832

Dow Tillson underwent elective left-eye cataract surgery performed by Dr. Richard Lane; within 48 hours he became permanently blind in that eye from suspected endophthalmitis (allegedly Enterococcus faecalis).
Plaintiffs sued for medical malpractice, alleging Dr. Lane failed to timely recognize, diagnose, and refer for appropriate treatment (retinal specialist/vitrectomy), causing the blindness and economic and consortium losses.
Plaintiffs disclosed ophthalmology expert Dr. Jonathan Javitt, who testified he would have consulted a retinal specialist and that, more likely than not, a timely vitrectomy plus antibiotics would have produced a substantially better/“functional” result (enough to read large print).
Defendants moved for summary judgment; the superior court granted it, concluding Dr. Javitt’s testimony amounted to "loss-of-chance" evidence insufficient to satisfy statutory proximate-cause requirements for malpractice under 12 V.S.A. § 1908.
The Vermont Supreme Court reviewed de novo, held that Javitt’s testimony—read in full—stated a greater-than-50% opinion that a timely referral would have prevented total vision loss, and reversed and remanded, finding the testimony sufficient to defeat summary judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether expert testimony met statutory proximate-cause requirement in a medical-malpractice case (12 V.S.A. § 1908)	Tillson: Dr. Javitt opined that timely referral/vitrectomy would, more likely than not, have yielded a better (functional) outcome — satisfying the >50% causation standard.	Lane: Expert’s testimony was at most a "loss-of-chance" opinion or equivocal and therefore failed to prove causation as required by § 1908.	The court held Javitt’s testimony, taken as a whole, expressed a >50% likelihood that timely referral would have prevented total vision loss and was sufficient to survive summary judgment.
Whether the loss-of-chance doctrine applies to relax causation standards in Vermont malpractice suits	Tillson: Distinguishes prior loss-of-chance cases; asserts expert reached a >50% opinion, so doctrine need not be invoked.	Lane: Relied on Smith v. Parrott to argue Vermont rejects loss-of-chance and expert’s opinion was functionally the same.	The court reaffirmed that Vermont does not adopt loss-of-chance to replace § 1908 but found this case did not rest on loss-of-chance because the expert testified to a greater-than-50% probability of a better outcome.

Smith v. Parrott, 175 Vt. 375, 833 A.2d 843 (2003) (declines to adopt loss-of-chance doctrine and interprets § 1908 as requiring a >50% causal link in malpractice cases)
Provost v. Fletcher Allen Health Care, Inc., 179 Vt. 545, 890 A.2d 97 (2005) (summary judgment should be cautiously granted where factual disputes remain and evidence admits conflicting interpretations)
Wilkins v. Lamoille Cnty. Mental Health Servs., Inc., 179 Vt. 107, 889 A.2d 245 (2005) (discusses but-for causation standard in medical-malpractice claims)
Crosby v. United States, 48 F. Supp. 2d 924 (D. Alaska 1999) (policy considerations counsel legislative, not judicial, expansion of causation doctrines)