Michael Quinlan, of the Estate of Lincy Sullivan v. Five-Town Health Alliance, Inc., dba Mountain Health Center and Sean May, PA-C

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2018 VT 53
Nos. 2017-102 & 2017-103
Michael Quinlan, Executor of the Supreme Court
Estate of Lincy Sullivan
On Appeal from
v. Superior Court, Addison Unit,
Civil Division
Five-Town Health Alliance, Inc., d/b/a
Mountain Health Center and Sean May, PA-C October Term, 2017
Samuel Hoar, Jr., J.
Pietro J. Lynn and Sean M. Toohey of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington,
for Plaintiff-Appellant.
Ian P. Carleton and Kevin A. Lumpkin of Sheehey Furlong & Behm P.C., Burlington, for
Defendants-Appellees.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 1. SKOGLUND, J. This is a consolidated appeal involving two successive
malpractice actions brought by the executor of a decedent’s estate against the clinic where the
decedent received treatment prior to her death and against the physician assistant who treated her.
The trial court dismissed the first action because plaintiff failed to file the certificate of merit
required by 12 V.S.A. § 1042 with his complaint, and dismissed the second action as untimely.
We conclude that the trial court properly dismissed both cases and therefore affirm.
¶ 2. Plaintiff Michael Quinlan alleged the following facts in his complaint. On October
21, 2014, plaintiff’s wife Lincy Sullivan met with physician assistant (P.A.) Sean May at Mountain
Health Center in Bristol, Vermont. She informed May that she was experiencing shortness of
breath, leg pain, and chest pain. May concluded that Sullivan had allergies, prescribed an inhaler,
and told Sullivan she could return home. Sullivan died from a pulmonary embolism on October
24, 2014.
¶ 3. Plaintiff subsequently retained an attorney to bring a medical malpractice claim
against defendants. In July 2016, plaintiff’s attorney consulted with a P.A. regarding plaintiff’s
claim. A few weeks later, plaintiff notified Mountain Health of the professional malpractice claim
and asked it to refer the matter to its insurer. Plaintiff provided defendant’s counsel with copies
of Sullivan’s medical records and a letter from the consulting P.A. opining that Mountain Health
breached the standard of care for P.A.s in several ways, directly contributing to Sullivan’s death.
¶ 4. On October 5, 2016, plaintiff, acting in his capacity as executor of Sullivan’s estate,
filed a wrongful death action against May and Mountain Health Center (Quinlan I). Service was
complete on October 21, 2016. The two-year statute of limitations period established by 14 V.S.A.
§ 1492(a) for wrongful death actions expired on October 25.
¶ 5. On November 1, 2016, defendants moved to dismiss the action because plaintiff
had failed to file a certificate of merit with his complaint as required by 12 V.S.A. § 1042. Section
1042 mandates that in all medical malpractice actions for personal injury or wrongful death
occurring on or after February 1, 2013, the attorney or party filing the action must “file[] a
certificate of merit simultaneously with the filing of the complaint.” 12 V.S.A. § 1042(a). The
attorney or plaintiff must certify that he or she has consulted with a qualified expert who, based on
reasonably available information, has described the applicable standard of care and indicated that
there is “a reasonable likelihood that the plaintiff will be able to show that the defendant failed to
meet that standard of care,” thereby causing the plaintiff’s injury. Id. § 1042(a)(2). Section
1042(e) provides that “[t]he failure to file the certificate of merit as required by this section shall
be grounds for dismissal of the action without prejudice, except in the rare instances in which a
court determines that expert testimony is not required to establish a case for medical malpractice.”
Id. § 1042(e). The statute contains a tolling provision to allow plaintiffs whose claims are about
to expire to obtain the requisite expert opinion: “Upon petition to the clerk of the court where the
2
civil action will be filed, an automatic 90-day extension of the statute of limitations shall be granted
to allow the reasonable inquiry required by this section.” Id. § 1042(d).
¶ 6. Plaintiff responded to defendants’ motion to dismiss by filing a separate action with
a certificate of merit on November 16, 2016 (Quinlan II), along with a petition for an extension of
the statute of limitations under 12 V.S.A. § 1042(d). Plaintiff also opposed defendants’ motion to
dismiss in Quinlan I, arguing that dismissal under § 1042(e) was discretionary and would be
inequitable in his case because he had complied with the substance of the rule by providing notice
of his claim and the consulting P.A.’s report to defendants prior to filing suit.
¶ 7. In January 2017, the court granted defendants’ motion to dismiss Quinlan I. It
noted that the statute of limitations had run but declined to rule whether Quinlan II was timely
filed. Plaintiff moved for reconsideration of the dismissal of Quinlan I. Meanwhile, defendants
moved to dismiss Quinlan II as time-barred. The court stayed the motion for reconsideration in
Quinlan I pending the outcome of the motion to dismiss in Quinlan II.
¶ 8. In his opposition to defendant’s motion to dismiss Quinlan II, plaintiff argued that
because he had filed an extension request under § 1042(d) within ninety days after the limitations
period expired on October 25, 2016, the limitations period should be deemed to have been
extended for those ninety days, thereby making his complaint and certificate of merit in Quinlan
II timely.1 He also argued that dismissal would violate his right to equal protection under the
Vermont and United States Constitutions and that the statute of limitations was otherwise tolled
by 12 V.S.A. § 558.
¶ 9. On March 8, 2017, the trial court dismissed Quinlan II with prejudice, finding that
it was time-barred. The court rejected plaintiff’s equal protection and tolling arguments. It also
1
Plaintiff does not pursue this argument on appeal, with good reason. He filed his petition
to extend the statute of limitations after the limitations period expired. The petition therefore did
not toll the running of the limitations period. See McClellan v. Haddock, 2017 VT 13, ¶ 27,
__Vt.__, 166 A.3d 579.
3
denied plaintiff’s motion for reconsideration in Quinlan I. Plaintiff appealed both decisions. At
plaintiff’s request, the appeals were consolidated for our review.
¶ 10. Plaintiff’s primary argument on appeal is that this Court should use its equitable
powers to reverse the dismissal of Quinlan I because he substantially complied with 12 V.S.A.
§ 1042(a) by obtaining an expert opinion describing the breach of the standard of care and
providing it to defendants prior to filing suit. We conclude that plaintiff’s proposed approach
conflicts with Vermont law and the legislative intent behind § 1042, and agree with the trial court
that dismissal of Quinlan I was required under our recent decision in McClellan v. Haddock, 2017
VT 13, __Vt.__, 166 A.3d 579.
¶ 11. In McClellan, the administrator of a decedent’s estate filed a wrongful death action
against the decedent’s physician and the physician’s employer three days before the limitations
period expired. The defendants moved to dismiss the action because the plaintiff did not file a
certificate of merit with her complaint. The plaintiff argued that her complaint incorporated the
certificate of merit requirements because she alleged that the defendants had breached professional
standards of care, her attorney had signed the complaint, and her attorney had already provided
defendant’s counsel with a copy of her expert’s preliminary opinion. The plaintiff also moved to
amend her complaint to add a certificate of merit. The trial court denied the motion to amend and
dismissed the complaint with prejudice because the statute of limitations had expired.
¶ 12. On appeal, we held that the trial court properly denied the plaintiff’s motion to
amend her complaint to add a certificate of merit, reasoning that “such an amendment would be
fundamentally inconsistent with the statutory purpose” of 12 V.S.A. § 1042. McClellan, 2017 VT
13, ¶ 16. We examined the language of the statute and the legislative history and determined that
the purpose of the certificate of merit statute was “to ensure that claims against health care
providers had been adequately investigated and determined to have merit by a qualified expert
before they were filed.” Id. ¶¶ 17, 20 (emphasis added). We explained that the “[p]laintiff’s ‘file
first, review later, and amend as necessary’ argument utterly defeats that purpose.” Id. ¶ 20.
4
¶ 13. We also rejected the plaintiff’s argument that the trial court had discretion not to
dismiss the case under 12 V.S.A. § 1042(e):
While the phrase “grounds for dismissal” does suggest that
dismissal is not required in every case where the certificate of merit
does not comport with the requirements of the statute, we do not
read it to authorize a later-filed amendment to supply a certificate of
merit otherwise entirely omitted from the original complaint. As
discussed, the overarching purpose of the statute is to protect
defendants from the burden of defending medical malpractice
claims lacking in expert support. Dismissal of a complaint filed
without the requisite certificate of merit attesting to such support is
essential to effectuate that purpose.
Id. ¶ 25.
¶ 14. Finally, we rejected the plaintiff’s argument that the trial court should have treated
her motion to amend as the equivalent of a request for a ninety-day extension of the statute of
limitations under § 1042(d). We held that “the phrase ‘where the civil action will be filed’ plainly
requires that an extension request precede the filing of the complaint.” Id. ¶ 27. Further, “even if
§ 1042(d) could be construed to authorize an extension request after the filing of a complaint, the
trial court here could not have granted a ninety-day extension of a statute of limitation that had
already expired when the motion to amend was filed.” Id. We therefore affirmed the trial court’s
dismissal of the complaint. Id.
¶ 15. As the trial court found, this case is squarely controlled by McClellan. Like the
plaintiff in McClellan, plaintiff here filed his initial complaint without the required certificate of
merit. Dismissal was therefore required under § 1042(e). See McClellan, 2017 VT 13, ¶ 25.
¶ 16. Plaintiff contends that we should reverse because unlike the plaintiff in McClellan,
he “substantially complied” with § 1042(a) by investigating the claim and providing defendants
with an expert report that was equivalent to the certificate of merit prior to filing suit.2 He urges
2
In McClellan, the plaintiff provided a preliminary expert opinion to the defendants, but
the trial court found that it could not substitute for the certificate of merit because it failed to
describe the standard of care or to opine that the alleged breach of that standard caused the
plaintiff’s injury, as required by § 1042(a). McClellan v. Haddock, 482-5-15 Cncv, at *3 (Vt.
Super. Ct. Nov. 30, 2015), https://www.vermontjudiciary.org/sites/default/files/documents/2016-
5
us to adopt the approach followed by New Jersey courts in screening malpractice complaints. See
Ferreira v. Rancocas Orthopedic Assocs., 836 A.2d 779 (N.J. 2003); Galik v. Clara Maass Med.
Ctr., 771 A.2d 1141 (N.J. 2001). In New Jersey, a malpractice complaint will not be dismissed
for failure to file the affidavit of merit required by New Jersey law if the plaintiff shows “(1) the
lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute
involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of
petitioner’s claim; and (5) a reasonable explanation why there was not strict compliance with the
statute.” Ferreira, 836 A.2d at 783 (quotation omitted).
¶ 17. We find the New Jersey high court’s interpretation of its affidavit-of-merit statute
to be unpersuasive because that statute takes a far more lenient approach to screening malpractice
cases than § 1042. New Jersey’s statute requires the plaintiff in any professional malpractice action
to provide each defendant with an affidavit of an expert stating that the defendant breached the
standard of care for that profession “within 60 days following the date of filing of the answer to
the complaint by the defendant.” N.J. Stat. Ann. § 2A:53A-27. The statute permits the court to
grant one sixty-day extension to file the affidavit. Id. Thus, the affidavit may be filed up to 120
days after the defendant answers. Unlike the Vermont statute, the purpose of the New Jersey
statute is “to weed out frivolous lawsuits early in the litigation.” Ferreira, 836 A.2d at 782
(quotation omitted). Consistent with this more lenient statutory approach, the New Jersey courts
have held that substantial compliance with the affidavit-of-merit statute is sufficient.3 See id.
12-7-3.pdf [https://perma.cc/YV8V-946N]. The plaintiff did not appeal that portion of the trial
court’s decision. In this case, the trial court did not address whether the consulting P.A.’s report
met the substantive requirements of § 1042(a). Defendants argue on appeal that the report is
insufficient because it did not describe the standard of care or give a clear opinion on causation.
Because we determine that the trial court properly dismissed Quinlan I due to plaintiff’s failure to
file a certificate with the complaint, we do not consider the substance of the report.
3
Even if this Court were to adopt New Jersey’s substantial compliance doctrine, plaintiff’s
claim would still fail because he has not provided “a reasonable explanation why there was not
strict compliance with the statute.” Ferreira, 836 A.2d at 783. The only reason offered by plaintiff
for his failure to file the certificate of merit was that counsel was not aware of the statute. This
Court has consistently held that an attorney’s “ignorance of the law or inattention to detail” does
6
¶ 18. By contrast, 12 V.S.A. § 1042 requires the certificate of merit to be filed
“simultaneously with the filing of the complaint.” Thus, the intent is to “screen out meritless
claims at the outset.” McClellan, 2017 VT 13, ¶ 18 (emphasis added) (quotation omitted). Section
1042 accomplishes this goal by requiring an evaluation of the claims before a plaintiff actually
files a case against a physician. Id. The statute was designed in this way to avoid subjecting
healthcare providers to the ordeal of being named in and having to defend against meritless
lawsuits. Id. For these providers, “eventual dismissal was an inadequate remedy for the associated
professional and personal costs” of such a lawsuit. Id. (quotation omitted). As we explained in
McClellan, the Vermont Legislature had before it “more ‘lenient’ statutory models to choose from
that allowed a later-filed certificate,” such as New Jersey’s affidavit of merit statute, “but had
plainly chosen the more stringent option.” Id. ¶ 20.
¶ 19. We therefore make explicit what we implicitly held in McClellan, namely, that
§ 1042’s requirement that a certificate of merit be filed simultaneously with the complaint is
mandatory and demands strict compliance.4 When a certificate of merit is “entirely omitted from
the original complaint,” dismissal is necessary to effectuate the statutory purpose of screening out
frivolous claims at the outset. McClellan, 2017 VT 13, ¶ 25. To hold otherwise would eviscerate
not excuse the attorney from complying with statutory or procedural requirements. In re Lund,
2004 VT 55, ¶ 5, 177 Vt. 465, 857 A.2d 279 (mem.). Even in New Jersey, counsel’s ignorance or
inadvertence does not constitute a “reasonable explanation” for failure to file an affidavit of merit.
See Palanque v. Lambert-Woolley, 774 A.2d 501, 505 (N.J. 2001) (stating “carelessness, lack of
circumspection, or lack of diligence on the part of counsel are not extraordinary circumstances
which will excuse” failure to timely file affidavit of merit); Nunez v. St. Mary’s Hosp., No. A-
0014-13T1, 2014 WL 6634659, at *2 (N.J. Super. Ct. App. Div. Nov. 25, 2014) (“An attorney’s
mistakes are not sufficient to provide a reasonable explanation for failure to comply with the
[affidavit of merit statute].”); Nuveen Mun. Tr. v. Withumsmith+Brown, P.C., No. 08-5994
(GEB), 2009 WL 3246139, at *5 (D.N.J. Oct. 7, 2009) (“Inadvertence of counsel, by itself, cannot
be a ‘reasonable explanation’ for failure to comply with the New Jersey [affidavit-of-merit]
statute.”).
4
Our conclusion applies to the timing of the filing of the certificate of merit only. As we
recognized in McClellan, dismissal may not necessarily be required “where the plaintiff files a
timely certificate of merit that nevertheless fails in some particular to meet the statutory
requirements, and where allowing an amendment to correct the deficiency—rather than ordering
dismissal—would not undermine the legislative purpose.” 2017 VT 13, ¶ 26.
7
the certificate of merit requirement and require costly additional litigation to examine whether a
plaintiff “substantially complied” with the law. “[W]hile we certainly recognize that the statute
may have harsh results in some cases, it cuts with a sharp but clean edge. It is the legislative choice
to implement the policy of eliminating frivolous medical malpractice lawsuits by dismissal.”
Lindberg v. Health Partners, Inc., 599 N.W.2d 572, 578 (Minn. 1999).
¶ 20. Our conclusion that failure to timely file a certificate of merit requires dismissal is
consistent with our prior decisions in this area of the law. In Fercenia v. Guiduli, 2003 VT 50, 175
Vt. 541, 830 A.2d 55 (mem.), the plaintiff filed a medical malpractice complaint against the
defendants one day before the statute of limitations expired. The defendants moved to dismiss,
arguing that the statute of limitations was not tolled by the filing of the complaint because the
plaintiff had failed to timely file their waiver of service with the court. The trial court denied the
motion on the grounds that it was a mere technical error and the defendants would not be
prejudiced. We reversed, holding that timely completion of service under the Rules of Civil
Procedure was required in order for the filing of the complaint to toll the statute of limitations, and
the plaintiff’s claim was time-barred because she failed to comply with those rules. Id. ¶¶ 9-11.
It was irrelevant that the defendants had notice of the plaintiff’s claim, because plaintiff’s error
caused the statute of limitations to expire.5 Id. ¶ 12. We held that “[w]e require plaintiffs to strictly
comply with the rules when expiration of the statute of limitations is an issue.” Id. ¶ 13; see also
Powers v. Chouinard, 138 Vt. 3, 4, 409 A.2d 598, 599 (1979) (holding malpractice action barred
by three-year statute of limitations because plaintiff filed suit one day late). Like timely
5
For similar reasons, it is irrelevant whether defendants suffered prejudice due to
plaintiff’s failure to file the certificate of merit in this case. The filing requirement must be strictly
complied with, and the failure to do so is the fault of plaintiff, not defendants. See Fercenia, 2003
VT 50, ¶ 12 (“The issue here is not one of failure to give effective notice of plaintiff’s claim, but
instead whether plaintiff’s failure to file defendants’ waiver of service within the time required by
the rules constituted a failure to properly commence plaintiff’s action and toll the applicable statute
of limitations.”).
8
completion of service, timely filing of a certificate of merit is required for a malpractice case to
proceed.
¶ 21. Courts in other jurisdictions have concluded, based on similar mandatory statutory
language, that strict compliance with filing requirements for medical malpractice claims is
required. See Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300, 310 (Tenn. 2012) (holding
statutory requirement that person asserting malpractice claim “shall” give sixty-day presuit notice
of claim was mandatory and required strict compliance); Scarsella v. Pollak, 607 N.W.2d 711,
714-15 (Mich. 2000) (per curiam) (holding complaint filed without affidavit of merit was
ineffective to toll statute of limitations); Lindberg, 599 N.W.2d at 577-78 (holding dismissal was
mandatory where plaintiff did not strictly comply with statute requiring affidavit of expert review
in medical malpractice cases); Rheaume v. Vandenberg, 591 N.W.2d 331, 334 (Mich. Ct. App.
1998) (rejecting argument that substantial compliance with statute requiring advance notice to
health professional or facility of malpractice claim was sufficient for plaintiff to benefit from
tolling provision of statute); Givertz v. Maine Med. Ctr., 459 A.2d 548, 552 (Me. 1983) (holding
plaintiff’s failure to give statutorily required notice of claim within two-year period of limitations
properly subjected malpractice suit to dismissal; statute did not permit “substantial compliance”).
Similar to these courts, we conclude that a certificate of merit must be filed with the complaint to
avoid dismissal under § 1042.
¶ 22. Plaintiff argues that requiring strict compliance with § 1042 violates his right to
equal protection under the Common Benefits Clause of the Vermont Constitution.6 According to
plaintiff, our interpretation of § 1042 arbitrarily disadvantages litigants with otherwise meritorious
claims who file suit without a certificate of merit close to the end of the limitations period, because
6
Plaintiff also alleges that the alleged classification violates his rights under the Equal
Protection Clause of the U.S. Constitution. This argument is inadequately briefed, so we do not
address it. See Concord Gen. Mut. Ins. Co. v. Gritman, 2016 VT 45, ¶ 29 n.3, 202 Vt. 155, 146
A.3d 882.
9
they are foreclosed from correcting their mistake, while plaintiffs who file suit earlier are able to
try again.
¶ 23. The Common Benefits Clause provides “[t]hat government is, or ought to be,
instituted for the common benefit, protection, and security of the people, nation, or community,
and not for the particular emolument or advantage of any single person, family, or set of persons,
who are a part only of that community.” Vt. Const. ch. I, art. 7. To determine whether a legal
requirement violates the Common Benefits Clause, we consider the following questions: “(1) what
‘part of the community’ is disadvantaged by the legal requirement; (2) what is the governmental
purpose in drawing the classification; and (3) does the omission of part of the community from the
benefit of the challenged law bear ‘a reasonable and just relation to the governmental purpose?’ ”
In re Hodgdon, 2011 VT 19, ¶ 23, 189 Vt. 265, 19 A.3d 598 (quoting Badgley v. Walton, 2010
VT 68, ¶ 21, 188 Vt. 367, 10 A.3d 469).
¶ 24. Here, we do not see that any part of the community is denied any benefit. In
Quinlan I, plaintiff was treated the same as any other plaintiff who fails to file a certificate of merit
simultaneously with a medical malpractice complaint: his complaint was dismissed pursuant to
§ 1042(e) and McClellan. In Quinlan II, plaintiff was treated the same as any other plaintiff who
files suit after the applicable limitations period expires: his complaint was dismissed as time-
barred. The disadvantage experienced by plaintiff and other similarly situated litigants is not
created by § 1042 or McClellan. Rather, it is created by their own inadvertence, their decision on
when to file the action, and the operation of the applicable statute of limitations. Although these
plaintiffs may have differing outcomes from those who file noncompliant actions earlier in the
limitations period, these outcomes result from factors entirely within their control. Plaintiff has
therefore failed to establish that he is being arbitrarily treated differently from others. See Vt.
Human Rights Comm’n v. Agency of Transp., 2012 VT 88, ¶ 13, 192 Vt. 552, 60 A.3d 702
(rejecting claim that statute requiring commission to bring suit within six months of receiving
10
complaint, while allowing state six years to bring suit, violated Common Benefits Clause, because
statute did not prevent any member of community from bringing suit).
¶ 25. Moreover, both § 1042 and the statute of limitations are reasonably related to
legitimate governmental purposes. As discussed above and in McClellan, the purpose of § 1042
is to weed out frivolous medical malpractice claims at the outset of litigation. The statute of
limitations likewise serves several legitimate purposes, “including fairness to defendants,
protecting the court’s interest in reliance and repose, and guarding against stale demands.” Vt.
Human Rights Comm’n, 2012 VT 88, ¶ 14. Strict enforcement of the certificate of merit
requirement and the statute of limitations does not offend the Common Benefits Clause. Nor is it
irrational for plaintiffs who have claims of similar merit to be treated differently based on whether
they comply with statutory filing requirements. For these reasons, plaintiff’s Common Benefits
claim fails.
¶ 26. Finally, plaintiff asserts that this Court should reverse the dismissal of Quinlan II
because the statute of limitations was tolled by 12 V.S.A. § 558 for one year following the
dismissal of Quinlan I. Section 558 provides, in pertinent part:
The plaintiff may commence a new action for the same cause
within one year after the determination of the original action, when
the original action has been commenced within the time limited by
any statute of this State, and the action has been determined for any
of the following reasons:
...
(2) where the action is dismissed for lack of jurisdiction of the
subject matter or person, improper venue, or failure to join an
indispensable party . . . .
12 V.S.A. § 558(a). Plaintiff argues that dismissal for failure to file a certificate of merit is a
dismissal for lack of subject matter jurisdiction, and therefore his claim is protected by § 558.
¶ 27. “ ‘Subject matter jurisdiction’ refers to the power of a court to hear and determine
a general class or category of cases.” Lamell Lumber Corp. v. Newstress Int’l, Inc., 2007 VT 83,
¶ 6, 182 Vt. 282, 938 A.2d 1215; see, e.g., Cameron v. Rollo, 2014 VT 40, ¶ 14, 196 Vt. 346, 97
11
A.3d 454 (recognizing family division has exclusive subject matter jurisdiction over distribution
of marital property acquired during marriage that ends in annulment). The civil division of the
superior court is a court of general jurisdiction. 4 V.S.A. § 31 (vesting in civil division of superior
court “original and exclusive jurisdiction of all original civil actions” subject to certain exceptions
not applicable here). Thus, it is presumed to have subject matter jurisdiction “unless a showing is
made to the contrary.” Lamell Lumber Corp., 2007 VT 83, ¶ 6 (quotation omitted).
¶ 28. Under common law, the superior court traditionally has had the power to hear
medical malpractice claims. See, e.g., Domina v. Pratt, 111 Vt. 166, 13 A.2d 198 (1940); Mullin
v. Flanders, 73 Vt. 95, 50 A. 813 (1901); Hathorn v. Richmond, 48 Vt. 557 (1876). We see no
evidence that in enacting § 1042, the Legislature intended to limit the power of the court to hear
this category of cases. Section 1042 nowhere mentions the word “jurisdiction.” Moreover, the
statute contains exceptions allowing a case to go forward without a certificate of merit if expert
testimony is unnecessary to establish a case for medical malpractice or if the sole allegation is
failure to obtain informed consent. 12 V.S.A. § 1042(e)-(f). We conclude that the failure to file a
certificate of merit does not divest the court of its general power to hear a medical malpractice
action.7 See Bennett v. New Milford Hosp., Inc., 12 A.3d 865, 881 (Conn. 2011) (holding
amendment to Connecticut certificate of merit statute, which made dismissal mandatory for failure
to comply, did not render certificate requirement jurisdictional in nature); Plante v. Charlotte
7
The cases cited by plaintiff do not support a contrary conclusion. In James v. United
States, 143 F. Supp. 3d 392 (E.D. Va. 2015), a federal district court dismissed a plaintiff’s
malpractice action against the government for lack of subject matter jurisdiction under the Federal
Tort Claims Act, because the plaintiff’s failure to file the certificate of merit required by Virginia
law would bar suit against a private individual and therefore the government’s sovereign immunity
was not waived. Id. at 396; see also Bell v. United States, No. 4:11cv60, 2011 WL 3734458, at
*1 (E.D. Va. Aug. 24, 2011) (same). Sovereign immunity is not at issue in this case. In Hannah
v. McLaughlin, 520 N.Y.S.2d 494 (N.Y. Sup. Ct. 1987), a New York trial court did hold that
failure to file a certificate of merit in a malpractice case was a jurisdictional defect. However, the
decision has not been followed and appears to be an outlier. See Santangelo v. Raskin, 528
N.Y.S.2d 90, 92 (N.Y. App. Div. 1988) (holding failure to attach certificate of merit to complaint
did not divest court of subject matter jurisdiction); Sullivan v. H.I.P. Hosp., Inc., 524 N.Y.S.2d
1022, 1023 (N.Y. Sup. Ct. 1988) (rejecting reasoning of Hannah).
12
Hungerford Hosp., 12 A.3d 885, 893 (Conn. 2011) (“[A] plaintiff’s failure to comply with the
requirements of [the certificate of merit statute] does not destroy the court’s subject matter
jurisdiction over the claim; it does not affect the power of the court to hear her medical malpractice
action.” (quotation omitted)). Therefore, 12 V.S.A. § 558 does not save plaintiff’s claim, and the
trial court properly dismissed Quinlan II.8
Affirmed.
FOR THE COURT:
Associate Justice
8
While we agree with the trial court’s conclusion that dismissal under § 1042(e) is not a
dismissal for lack of subject matter jurisdiction, we disagree with its conclusion that such a
dismissal is necessarily an adjudication on the merits. The court’s dismissal of Quinlan I had the
same practical effect as an adjudication on the merits because plaintiff’s subsequent suit was barred
under the statute of limitations. However, the statute provides that failure to file the requisite
certificate of merit requires “dismissal without prejudice.” 12 V.S.A. § 1042(e) (emphasis added).
Dismissal under § 1042(e) therefore would not preclude a plaintiff from pursuing a malpractice
claim in a subsequent action. See McClellan, 2017 VT 13, ¶ 22 n.6 (“Of course, if the statute of
limitations had not yet expired . . . nothing would prevent the plaintiff—after dismissal—from
refiling the complaint with the required affidavit.”). Rather, “[d]ismissal pursuant to this section
is a statutory remedy for any defendant who is subject to a legal action in which the statutorily
required written opinion is not annexed to the complaint or initial pleading.” Votre v. Cty.
Obstetrics & Gynecology Grp., P.C., 966 A.2d 813, 821 (Conn. App. Ct. 2009). It has no res
judicata effect. However, insofar as the statute of limitations has expired, plaintiff is precluded
from filing a new claim.
13