Carter v. Menard ( 2019 )

Carter v. Menard, 562-9-16 Wncv (Teachout, J., Mar. 1, 2017)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 562-9-16 Wncv
BERNARD CARTER
Plaintiff
v.
LISA MENARD, COMMISSIONER,
VERMONT DEPARTMENT OF CORRECTIONS
Defendant
ENTRY
Inmate–Plaintiff Bernard Carter alleges that the Department of Corrections repeatedly
provided negligent healthcare to him for a broken toe, which healed improperly and now causes
pain. He seeks $280,000 as compensation. He does not seek injunctive relief. The State seeks
dismissal for lack of subject matter jurisdiction because Mr. Carter failed to exhaust his
administrative remedies and failed to file a certificate of merit pursuant to 12 V.S.A. § 1042(a).
Exhaustion
The DOC’s grievance policy applies generally to all conditions of confinement including
any “matter relating to access to privileges, programs and services, conditions of care or
supervision under the authority of the Department of Corrections, to include rights under the
federal Americans with Disabilities Act.” Directive #320.01, Procedural Guidelines ¶ 6(a).
Claims based on the quality of medical treatment or those seeking compensatory damages are
nowhere excluded from the policy, though there are special procedures for emergency and non-
emergency grievances related to health. Id. ¶ 11. The grievance policy therefore appears to
apply to Mr. Carter’s claim, and he does not dispute that.
He also concedes that he failed to exhaust. He pursued a grievance to the point of filing
an appeal to the Commissioner, but then filed this action before the Commissioner’s time to
respond had elapsed. Directive #320.01, Procedural Guidelines ¶ (15)(b)(i) (time to respond).
No response came. Mr. Carter now seeks a stay so he can complete the grievance process and
avoid dismissal.
In a previous case in which Mr. Carter failed to exhaust and sought a stay, the court
explained: “The court also rejects Mr. Carter’s request for a stay pending exhaustion.
Exhausting administrative remedies while this lawsuit is pending, even if stayed, would
undermine rather than reinforce the salutary purposes of the exhaustion requirement.” Carter v.
Pallito, No. 177-3-14 Wncv, 2015 WL 5176807 (Vt. Super. Ct. Jan. 5, 2015).
“A party’s failure to exhaust administrative remedies permits a court to dismiss the action
for lack of subject matter jurisdiction.” Jordan v. State Agency of Transp., 166 Vt. 509, 511
(1997). The court lacks subject matter jurisdiction. Dismissal is appropriate. A stay is not.
Certificate of merit
Even if Mr. Carter had exhausted his administrative remedies, dismissal would be
appropriate because he failed to file a certificate of merit. 12 V.S.A. § 1042. Section 1042(a)
bars civil actions based on the negligence of a health care provider (other than informed consent
claims) absent a certification that the plaintiff consulted with a medical expert who described the
applicable standard of care and concluded that there is a reasonable chance that the plaintiff will
be able to prove that the defendant deviated from that standard of care and that the deviation
caused of the alleged injury. The only exception is where the court finds that the medical
negligence claim is so obvious that it does not require expert support. 12 V.S.A. § 1042(e).
Mr. Carter’s claim plainly would require expert support. Knowledge about broken toes,
their treatment, and the consequences of errors in their treatment cannot reasonably be attributed
to ordinary laypersons. He was required to file a 12 V.S.A. § 1042(a) certificate and has not.
The State’s motion to dismiss is granted.
ORDER
The State’s motion to dismiss filed November 14, 2016 is granted.
Plaintiff’s cross motion to stay the proceedings filed November 30, 2016 is denied.
Dated at Montpelier, Vermont this ____ day of February 2017.
_____________________________
Mary Miles Teachout
Superior Judge