264 A.3d 850
Vt.2021Background
- Joshua Bittner, with a documented history of depression and prior self-harm risk, was detained in Feb 2017, evaluated multiple times, placed on mental-health watch and later transferred between correctional facilities; he was found dead by suicide on March 2, 2017.
- Plaintiff (administrator of decedent's estate) filed a wrongful-death/medical-malpractice complaint in Feb 2019 against DOC, Centurion, and several individual mental-health providers but did not file the statutory certificate of merit (COM) with the complaint.
- Plaintiff moved—after filing—to extend the statute of limitations to obtain a COM; the trial court denied the extension as untimely under controlling precedent.
- Defendants moved to dismiss the malpractice claim for failure to file a COM; the trial court denied dismissal because it could not determine from the complaint whether this was one of the statutory "rare instances" where expert testimony (and thus a COM) is unnecessary.
- The Vermont Supreme Court held that the court must determine from the four corners of the initial complaint whether the rare-instances exception applies and concluded the complaint did not show such an instance; the malpractice claim was dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a COM must be filed simultaneously and failure mandates dismissal absent an applicable exception | Bittner sought an extension and implicitly argued the claim could proceed | Failure to file a COM requires dismissal under 12 V.S.A. §1042 unless the complaint on its face shows the rare exception | COM simultaneous filing is mandatory; omission requires dismissal unless the complaint itself shows the rare exception |
| Whether the court may allow discovery to determine if the "rare instances" exception applies | Plaintiff argued the trial court could probe the issue after filing | Defendants argued the exception must be apparent from the initial complaint and cannot be explored via discovery | Court ruled the exception must be determined from the complaint alone; discovery cannot cure a missing COM |
| Whether the "rare instances" exception can be invoked where alleged conduct relates to suicide risk and transfer communications (mental-health alert) | Plaintiff contended allegations about transfer, prior suicidal assessments, and omission of a "mental health alert" could allow a lay jury to infer negligence and causation without expert testimony | Defendants argued suicide causation and standard-of-care for psychiatric care are complex and require expert proof | The court held suicide-risk treatment and causation are complex; expert testimony was required and the complaint did not show a rare instance |
| Whether plaintiff's post-filing request for a statutory extension tolled the COM requirement | Plaintiff sought a 90-day extension after filing the complaint | Defendants asserted the extension must precede filing under McClellan | The court reaffirmed that a §1042(d) extension must be requested before filing; the post-filing request was untimely |
Key Cases Cited
- McClellan v. Haddock, 166 A.3d 579 (Vt. 2017) (statutory extension to secure a COM must be requested before filing; simultaneous COM filing required)
- Quinlan v. Five-Town Health Alliance, 192 A.3d 390 (Vt. 2018) (strict compliance with COM requirement; omission mandates dismissal)
- Senesac v. Assocs. in Obstetrics & Gynecology, 449 A.2d 900 (Vt. 1982) (expert testimony generally required in malpractice cases, with limited common-knowledge exception)
- Wilkins v. Lamoille County Mental Health Servs., 889 A.2d 245 (Vt. 2005) (claims involving suicide, causation, and psychiatric care generally require expert proof)
- Moats v. Preston County Comm’n, 521 S.E.2d 180 (W. Va. 1999) (failure to convey mental-health information involves complex medical questions not within lay knowledge)
- Meier v. Ross Gen. Hosp., 445 P.2d 519 (Cal. 1968) (example where negligence was obvious to laypersons—placing suicidal patient in room with openable window—so expert not required)
- Kerker v. Hurwitz, 558 N.Y.S.2d 388 (N.Y. App. Div. 1990) (holding liability may be based on ordinary negligence without expert proof where there is clear notice of risk)
- Estate of Joshua T. v. State, 840 A.2d 768 (N.H. 2003) (noting suicide is complex and causation/prediction are difficult, supporting need for expert testimony)