Bittner v. Centurion of Vt., LLC
| Decision Date | 17 September 2021 |
| Docket Number | 2020-260 |
| Court | Vermont Supreme Court |
| Parties | Renee Bittner, as Administrator of the Estate of Joshua Bittner v. Centurion of Vermont, LLC et al. |
On Appeal from Superior Court, Franklin Unit, Civil Division Robert A. Mello, J.
David C. Sleigh of Sleigh Law, St. Johnsbury, for Plaintiff-Appellee.
Pamela L.P. Eaton and Stephen J. Soule of Paul Frank + Collins P.C. Burlington, for Defendants-Appellants.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen JJ.
¶ 1. In this interlocutory appeal, defendants challenge the trial court's denial of their motion to dismiss plaintiff's medical malpractice claim. They maintain that dismissal was required because plaintiff did not file a certificate of merit (COM) with her complaint as required by 12 V.S.A. § 1042(a) and the trial court did not find nor does the complaint show, that this is a "rare instance" where expert testimony is unnecessary under § 1042(e). We agree with defendants and therefore reverse the trial court's decision.
¶ 2. Joshua Bittner committed suicide in March 2017 while in the custody of the Vermont Department of Corrections (DOC). Plaintiff is the administrator of Mr. Bittner's estate. In February 2019, plaintiff filed a complaint against DOC, Centurion of Vermont, LLC, and several individual health-care providers employed by Centurion and DOC to provide mental health services at Northwest State Correctional Facility and Northern State Correctional Facility. The complaint included the medical malpractice claim at issue here.
¶ 3. Plaintiff's initial complaint alleges the following.[1] On February 3, 2017, Mr. Bittner was arrested on various charges and held for lack of bail. Based on prior mental health screenings, DOC knew of Mr. Bittner's mental health problems and associated risk factors. Before Mr. Bittner was detained at Northwest State, a crisis worker from Northwestern Counseling and Support Services conducted an emergency psychiatric evaluation of Mr. Bittner. During the evaluation, Mr. Bittner reported that he suffered from depression and felt suicidal. The evaluator advised the transport officers that Mr. Bittner should be placed under "watch" until he became more stable and recommended that Mr. Bittner be given mental health care as soon as possible. One of the transport officers notified the intake officer at Northwest State that Mr. Bittner had been determined to be suicidal in the recent evaluation. Shortly thereafter, during a requisite medical intake at Northwest State, Mr. Bittner was noted to be crying extensively and making suicidal comments. As a result, Mr. Bittner was placed in a smock and continued on fifteen-minute watch.
¶ 4. The following day, defendant Sutton, a mental health care provider at Northwest State, conducted a self-harm assessment and ordered Mr. Bittner placed in mental health segregation on camera with mental health checks every fifteen minutes. Defendant Sutton noted that Mr. Bittner reported positive suicidal ideation and previous self-harm and presented as depressed and anxious; defendant Sutton made an identical note regarding Mr. Bittner's mental state the following day.
¶ 5. On February 8, defendant Sutton and defendant Supley, another mental health care provider, evaluated Mr. Bittner and ordered that he remain in segregated housing. On February 14, defendant Sutton again evaluated Mr. Bittner and ordered him returned to segregated housing after he indicated anew possible self-harm. On February 16, Mr. Bittner was prescribed antidepressants to begin February 19. The prescriber cited Mr. Bittner's prior self-harm, history of treatment at the Howard Center, and persistent symptoms; he ordered a follow-up on April 6 but a mental health visit if "medicine effects worsened."
¶ 6. On February 17, Mr. Bittner was transferred to Northern State. An intra-system transfer note documented that he was in active detoxification, on a new medication, and had a mental health diagnosis, but it did not include "a mental health alert."[2]
¶ 7. On February 20, defendant Rebbe, a mental health care provider, evaluated Mr. Bittner at Northern State. Mr. Bitter stated that he was depressed, had just started a new anti-depressant, and was having trouble sleeping; the complaint did not allege that he reported suicidal thoughts. Defendant Rebbe prescribed meetings every ninety days. Mr. Bittner was not otherwise evaluated or monitored for worsening symptoms related to his new medications and he was not housed in mental health segregation. Ten days later, on March 2, Mr. Bittner was found hanging in his cell; he was pronounced dead the following day.
¶ 8. Based on these assertions, plaintiff alleged that defendants "failed in their duty to provide medical and mental health care which met the standard of care to which [Mr. Bittner] was entitled" and that this violation of the standard of care caused his death.
¶ 9. By statute, a plaintiff cannot file a civil action to recover damages for wrongful death if the death allegedly "resulted from the negligence of a health care provider, unless the attorney or party filing the action files a certificate of merit simultaneously with the filing of the complaint." 12 V.S.A. § 1042(a). In the COM, the plaintiff or his or her attorney must certify that they consulted with a health care provider, the provider described the applicable standard of care, and the provider found it reasonably likely that the plaintiff could show that the standard of care was violated and that the violation led to the plaintiff's injury. Id. Failure to file a COM is "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).
¶ 10. Plaintiff did not file a COM with her initial complaint in February 2019 although she separately requested to extend the statute of limitations to provide a COM until June 1, 2019. See id. § 1042(d) (). The trial court denied the extension request because it did not precede the filing of the complaint. See McClellan v. Haddock, 2017 VT 13, ¶ 27, 204 Vt. 252, 166 A.3d 579 ().
¶ 11. Defendants subsequently moved to dismiss the medical malpractice claim, citing plaintiff's failure to file a COM simultaneously with her complaint. The trial court agreed that dismissal ordinarily would be required but questioned if this might be a "rare instance" in which expert testimony was not required. After obtaining additional briefing on this issue, the court denied the motion to dismiss because it could not determine from the face of plaintiff's complaint if the exception applied. This interlocutory appeal followed.
¶ 12. On appeal, defendants argue that dismissal is required because plaintiff failed to comply with 12 V.S.A. § 1042. They reiterate that plaintiff failed to file a COM simultaneously with her complaint and they argue that plaintiff failed to show that this is one of the "rare instances" in which expert testimony is unnecessary. Defendants maintain that the court erred by allowing the claim to proceed without first determining if the exception applied and effectively allowing plaintiff to engage in discovery-after filing its complaint-to investigate the need for expert testimony.
¶ 13. We review the trial court's disposition of a motion to dismiss without deference, using the same standard as the trial court. Skaskiw v. Vt. Agency of Agric., 2014 VT 133, ¶ 6, 198 Vt. 187, 112 A.3d 1277. We assume that "all factual allegations pleaded in the complaint are true, accept as true all reasonable inferences that may be derived from plaintiff's pleadings, and assume that all contravening assertions in defendant[s'] pleadings are false." Clark v. Baker, 2016 VT 42, ¶ 8, 201 Vt. 610, 146 A.3d 326 (quotation omitted).
¶ 14. It is undisputed that plaintiff failed to file a COM simultaneously with her complaint as required by § 1042(a) and thus dismissal is required unless the exception applies. In determining the applicability of the exception, we consider two questions: (1) whether it must be apparent from the face of a plaintiff's complaint that the exception applies; and if so, (2) whether plaintiff's complaint satisfies this requirement. We conclude that the court is limited to the allegations in an initial complaint in determining if the exception applies and that plaintiff's complaint does not present a "rare instance" in which expert testimony is unnecessary. Her medical malpractice claim must therefore be dismissed.
¶ 15. First, we find it clear from the language of the statute the purpose of the COM requirement, and our case law that a court cannot exempt a plaintiff from the COM requirement unless it affirmatively determines from the four corners of the initial complaint that expert testimony is unnecessary.
¶ 16. As noted above, § 1042(e) provides, "The failure to file the [COM] 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." This language plainly requires an affirmative finding by the court.
¶ 17. Consistent with our case law and the statute's purpose, this determination must be made when the initial complaint is filed. As we explained in McClellan the COM requirement was adopted in...
To continue reading
Request your trial