Estella McClellan, Administrator of the Estate of Betty Jo McClellan v. Jeffrey E. Haddock, M.D. and Thomas Chittenden Health Center, PLC
166 A.3d 579
Vt.2017Background
- Decedent died May 18, 2013 from a drug combination; plaintiff (mother) filed wrongful-death suit May 15, 2015 (three days before two-year statute of limitations expired); service completed June 18, 2015.
- Vermont statute (12 V.S.A. § 1042) requires a certificate of merit to be filed "simultaneously with the filing of the complaint" in medical-malpractice personal-injury or wrongful-death actions occurring on or after Feb. 1, 2013; failure to file is "grounds for dismissal" and the statute provides an automatic 90-day extension upon petition to the clerk before filing.
- Plaintiff did not file a separate certificate of merit with the complaint; she provided a preliminary expert report to defense counsel and sought to amend the complaint post-filing to add a certificate.
- Defendants moved to dismiss for failure to file the certificate of merit and argued the complaint was untimely because the amendment could not relate back to toll the limitations period.
- Trial court denied the motion to amend (finding Rule 15 inapplicable and that allowing amendment would defeat the statute’s purpose) and refused to treat the amendment motion as a § 1042(d) petition for a 90-day extension because the statute requires the petition before filing; it dismissed as time-barred.
- Supreme Court affirmed: a certificate filed after complaint cannot cure a complete omission because it subverts the statutory simultaneous-filing requirement and the legislative purpose of screening meritless claims; the complaint did not plead a pre-February 1, 2013 survival/personal-injury claim exempt from § 1042.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complaint could be amended post-filing to add a certificate of merit | Counsel can amend under V.R.C.P. 15(a); amended certificate should relate back to original filing to avoid statute-of-limitations bar | Allowing post-filing amendment would defeat § 1042’s simultaneous-filing requirement and its screening purpose | Denied — amendment to supply a wholly omitted certificate cannot be used to cure the failure to file simultaneously |
| Whether the motion to amend could be treated as a § 1042(d) petition for an automatic 90-day extension | Motion to amend should be treated as a petition to the clerk and, if timely, would secure the automatic extension | § 1042(d) requires petition "where the civil action will be filed" and thus before filing; post-filing petition is not authorized | Denied — extension petition must precede filing; court could not grant extension after limitations expired |
| Whether failure to file certificate required dismissal with prejudice | Plaintiff argued dismissing with prejudice was improper; she also argued some alleged injuries predated Feb. 1, 2013 and thus did not require a certificate | Defendants argued dismissal is proper because certificate was required for the wrongful-death claim occurring after Feb. 1, 2013 and was omitted | Dismissal affirmed as time-barred; court rejected that complaint pleaded a survival/personal-injury claim outside § 1042’s scope |
| Whether complaint pleaded a survival action for pre-February 1, 2013 injuries (thus avoiding certificate requirement) | Complaint alleged long-term treatment beginning 2009, an overdose in May 2012, and damages suffered — should be read liberally as asserting survival/personal-injury claims | The complaint’s legal claims expressly sought recovery under wrongful-death statute (14 V.S.A. § 1492); allegations did not give fair notice of a survival claim | Held — complaint alleged only death-based damages; no viable survival/personal-injury claim was pled |
Key Cases Cited
- Richards v. Town of Norwich, 726 A.2d 81 (Vt.) (standard for assuming well-pled allegations on dismissal)
- Scarsella v. Pollak, 607 N.W.2d 711 (Mich. 2000) (affidavit-of-merit must accompany complaint; post-filing affidavit cannot toll limitations)
- Thigpen v. Ngo, 558 S.E.2d 162 (N.C. 2002) (statutory certification requirement cannot be cured by later amendment without defeating legislative intent)
- Borger v. Eighth Judicial Dist. Court, 102 P.3d 600 (Nev. 2004) (dismissing where plaintiff wholly failed to attach required expert affidavit; later amendment improper)