White v. Brereton ( 2024 )

'ermont Superior Court
Filed 10/16/24
Washington Unit
SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 23-CV-03438
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org
Christopher White v. Anne Brereton, et al
Opinion and Order on Motion for Summary Judgment
Plaintiff's remaining claim in this case asserts that Defendant Brereton
failed to obtain proper informed consent from him regarding an aspiration
procedure performed on a bursa in his arm. He sues Defendant Brereton and her
employer for that alleged medical error. The Court previously dismissed his direct
medical malpractice claims against Defendants regarding the procedure.
Defendants have now filed a motion for summary judgment as to the informed-
consent claim, which Plaintiff has opposed. The Court makes the following
determinations.
Standard
Summary judgment procedure is properly regarded as "an integral part of the
... Rules as a whole, which are designed 'to secure the just, speedy and inexpensive
determination of every action." Morrisseau v. Fayette, 164 Vt. 358, 363 (1995)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)). Summary judgment is
appropriate if the evidence in the record, referred to in the statements required by
Vt. R. Civ. P. 56(c), shows that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law. Vt. R. Civ. P.
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56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994). In assessing a motion for
summary judgment, the Court views all such evidence and indulges all inferences
from that evidence in favor of the non-moving party. Price v. Leland, 149 Vt. 518,
521 (1988).
A party opposing summary judgment may not simply rely on allegations in
the pleadings to establish a genuine issue of material fact. Instead, it must come
forward with deposition excerpts or affidavits to establish such a dispute as
required by the Rule. Murray v. White, 155 Vt. 621, 628, (1991). If the non-moving
party will bear the burden of proof at trial, the moving party may be entitled to
summary judgment if the non-moving party is unable to come forward with
evidence supporting its case. Poplaski v. Lamphere, 152 Vt. 251, 254–55 (1989).
In this case, Defendants have moved for summary judgment and has
supported that request as provided in Vt. R. Civ. P. 56. Plaintiff has opposed the
motion but has not submitted a statement of disputed facts that may warrant a
trial and otherwise follow the command of Rule 56, despite being informed of the
need to do so. Accordingly, pursuant to Vt. R. Civ. P. 56(c)(2) and (e)(2), the Court
accepts Defendants’ statement of undisputed facts as established for purposes of
this motion.
Analysis
Defendants’ primary argument is that Plaintiff cannot meet an essential element of
his case because he lacks any expert evidence that can establish that Defendant Brereton
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failed to obtain informed consent1 for the aspiration procedure concerning his elbow. They
maintain that such a claim, similar to one asserting a violation of a medical standard of
care, requires Plaintiff to provide an expert medical opinion to support his cause of action.
They assert that Plaintiff has not provided a medical expert, the time to name one has long
since passed, and the failure to provide such evidence is fatal to Plaintiff’s case. The Court
agrees.
The Vermont Legislature and the Supreme Court have been explicit that most
claims regarding a failure to obtain informed consent for a procedure require expert
testimony. Mello v. Cohen, 168 Vt. 639, 640 (1998); Noyes v. Gagnon, No. 2007-311, 2008
WL 2811231 at *1 (Vt. Feb. 1, 2008) (3–Justice Opinion); 12 V.S.A. § 1909(e). Section 1909
specifically states:
A motion for judgment for the defendant at the end of plaintiff’s case
must be granted as to any cause of action for medical malpractice
based solely on lack of informed consent if the plaintiff has failed to
adduce expert medical testimony in support of the allegation that he or
she was not provided sufficient information as required by subsection
(a)(1) of this section
12 V.S.A. § 1909(e).
Here, Plaintiff agrees that he has no expert to support his claim and, at times,
appears to have agreed that such testimony is needed. He opposed summary judgment but
has not countered Defendants’ statement of facts, which the Court has accepted for
purposes of this motion. Those facts establish that Plaintiff sought treatment from
Defendant Brereton for an abscess on his elbow; that Defendant Brereton recommended an
aspiration procedure to him; that he was informed of the risks of the aspiration procedure
by Defendant Brereton prior to the procedure; that he reviewed an informed consent form
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The Court has already dismissed Plaintiff’s claims for medical malpractice. Much
of the opposition strays into discussions that would only be relevant to such claims.
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regarding the procedure; that he executed the informed consent form indicating he had
been advised of the risks of the procedure, alternatives, and the risks and benefits of the
procedure (among other things); and that Defendant Brereton performed the procedure.
To the extent Plaintiff’s opposition seeks to argue that informed consent required
something more or different from what was given under the particular circumstances of his
procedure, the Court concludes that claim requires the support of a medical expert. Such a
cause of action necessarily involves delving into the nuances of the particular procedure,
the specific risks presented, and whether additional information or discussions of other
alternatives or issues was warranted in that instance. Assessing those types of assertions
require input from persons specially educated and skilled in the medical field. Such
matters are simply not within the understanding of lay persons. Accord Mello, 168 Vt. at
640 (informed consent needed to treat tongue lesions involves “technical” medical issues
requiring expert opinion); see also Jones v. Block, 171 Vt. 569, 569 (2000); Senesac v.
Associates in Obstetrics & Gynecology, 141 Vt. 310, 313 (1982); Begin v. Richmond, 150 Vt.
517, 520 (1988); Larson v. Candlish, 144 Vt. 499, 502 (1984); (all noting that standard
medical malpractice cases typically require plaintiffs to adduce expert medical testimony in
support of their claims).
A potential exception to the expert-evidence rule exists where the violation of
informed consent would be obvious to a lay person. While Section 1909(e) does not mention
such an exception, Noyes, No. 2007-311, 2008 WL 2811231, at *2, appeared to apply it in
this context; and such an approach makes sense. The exception is a narrow one, however,
and applies only to the most obvious of medical errors. Cf. Crystal Coca-Cola Bottling Co. v.
Cathey, 317 P.2d 1094, 1100 (Ariz. 1957) (jury “does not require the aid of expert medical
evidence in order to determine that the discovery of a fly in a mouthful of Coca-Cola caused
the vomiting which immediately followed the discovery”). It does not apply here.
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In this case, as noted above, Plaintiff’s claims as to lack of informed consent are
granular and require the type of “technical” analysis that can only be provided by a medical
expert. Such matters are well beyond the ken of lay jurors to determine without the benefit
of expert testimony.
Conclusion
In light of the foregoing, Defendants’ motion for summary judgment is
granted.
Electronically signed on Tuesday, October 15, 2024, per V.R.E.F. 9(d).
_______________________
Timothy B. Tomasi
Superior Court Judge
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