Dow Tillson and Susan Tillson v. Richard A. Lane, M.D. and Lane Eye Associates , 200 Vt. 534 ( 2015 )

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.
2015 VT 121No. 2014-382
Dow Tillson and Susan Tillson Supreme Court
On Appeal from
v. Superior Court, Windsor Unit,
Civil Division
Richard A. Lane, M.D., and Lane Eye Associates March Term, 2015
Mary Miles Teachout, J. (summary judgment); Theresa S. DiMauro (final judgment)
Michael J. Gannon and Sara M. Moran of Affolter Gannon, Essex Junction, for
Plaintiffs-Apellants.
Keith Aten of Theriault & Joslin, P.C., Montpelier, for Defendants-Appellees.
PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Bent, Supr. J.,
Specially Assigned
¶ 1. REIBER, C.J. Plaintiffs appeal from a decision by the Superior Court, Windsor
Unit, Civil Division, granting defendants’ motion for summary judgment in a medical
malpractice suit. We reverse and remand.
¶ 2. The record shows that plaintiff Dow Tillson underwent an elective procedure to
remove a cataract in his left eye. Defendant Dr. Richard Lane, M.D., performed the procedure at
Springfield Hospital. Plaintiffs alleged in their amended complaint that within twenty-four hours
of surgery, Mr. Tillson’s left eye showed signs of infection. Dr. Lane made a presumptive
diagnosis of endopthalmitis, but did not refer Mr. Tillson to a retinologist for treatment. Within
forty-eight hours of surgery, Mr. Tillson was permanently blind in his left eye. Plaintiffs
attribute the cause of the endopthalmitis to Enterococcus faecalis, an infectious organism.
¶ 3. According to the amended complaint, Dr. Lane and his co-defendant, Lane Eye
Associates, breached their duty of care by failing to “adequately and timely recognize, diagnose,
and treat the infection.” Plaintiffs claimed that Mr. Tillson has incurred medical bills and that his
blindness has resulted in pain and suffering as well as psychological stress, while Mrs. Tillson
has suffered loss of consortium. Both plaintiffs claimed economic loss.
¶ 4. During discovery, plaintiffs disclosed Dr. Jonathan Javitt, M.D., as their expert
witness. Dr. Javitt earned his medical degree in 1982 from Cornell University Medical College
and is a board certified ophthalmologist. Since 1987, he has been a member of the faculty of
Johns Hopkins University School of Medicine and has served as an adjunct professor of
ophthalmology. Dr. Javitt has authored multiple articles on endophthalmitis as well as cases on
infections caused by Enterococcus faecalis. Plaintiffs expected Dr. Javitt to testify that, given
the presumptive diagnosis of endophthalmitis, Mr. Tillson should have received a more proactive
and aggressive treatment than what Dr. Lane provided. Plaintiffs indicated in their answer to
defendant’s interrogatory that Dr. Javitt’s expert opinion was that Dr. Lane should have
consulted with a retinologist regarding the necessity for Mr. Tillson to undergo an immediate
pars plana vitrectomy.
¶ 5. Defendants deposed Dr. Javitt in December 2013. At the deposition, counsel for
defendants questioned Dr. Javitt regarding his qualifications and his opinion regarding the
likelihood that Mr. Tillson would have retained his vision. Dr. Javitt stated that he is a board
certified ophthalmologist and is regarded as a national expert in that field. He admitted that he is
not qualified to perform vitrectomy surgery, but asserted that a retinal specialist would be
qualified. Dr. Javitt later stated that he would not try to treat a case of endopthalmitis without
consulting a specialist. Dr. Javitt said, if Mr. Tillson had undergone a vitrectomy and received
antibiotics, “[h]e would have had a real chance versus no real chance of saving the sight in that
eye.” In response to a clarifying question from plaintiff’s counsel, Dr. Javitt later stated, “I think
more likely than not [Mr. Tillson] would have wound up with a better result.”
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¶ 6. Defendants moved for summary judgment on April 8, 2014. The superior court
issued a decision granting the motion on September 8, 2014. The court based its decision on its
determination that Dr. Javitt’s testimony amounted to “loss-of-chance” evidence insufficient to
prove that plaintiffs’ injury was caused by defendants’ departure from the standard of care. See
also 12 V.S.A. § 1908 (setting forth plaintiff’s burden of proof in medical malpractice suit).
Plaintiffs appealed.
¶ 7. We review a grant of summary judgment de novo, using the same standard as the
superior court. Smith v. Parrott, 2003 VT 64, ¶ 6, 175 Vt. 375, 833 A.2d 843. The moving party
must demonstrate that there are no genuine issues of material fact and the party is entitled to
judgment as a matter of law. Id. We resolve all reasonable doubts in favor of the party opposing
summary judgment. Id.; see also Collins v. Thomas, 2007 VT 92, ¶ 6, 182 Vt. 250, 938 A.2d
1208 (“We review an award of summary judgment de novo, construing all doubts and inferences
in favor of the nonmoving party.”).
¶ 8. Plaintiffs argue that the trial court erred in concluding that Dr. Javitt’s testimony
was “loss-of-chance” evidence that did not meet the statutory requirement for proximate cause.
“ ‘[U]nder the [loss-of-chance] doctrine, the plaintiff would be compensated for the extent to
which the defendant’s negligence reduced the victim’s likelihood of achieving a better outcome,
notwithstanding the fact that the likelihood may have been reduced by less than fifty-one
percent.’ ” Smith, 2003 VT 64, ¶ 7 (quoting J. King, “Reduction of Likelihood” Reformulation
and Other Retrofitting of the Loss-of-a-Chance Doctrine, 28 U. Mem. L. Rev. 491, 493 (1998)).
Underpinning this doctrine is the principle that “the loss of a chance of achieving a favorable
outcome or of avoiding an adverse consequence should be compensable and should be valued
appropriately, rather than treated as an all-or-nothing proposition.” J. King, Causation,
Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future
Consequences, 90 Yale L.J. 1353, 1354 (1981).
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¶ 9. Despite the loss-of-chance doctrine gaining support in other jurisdictions, we
previously determined in Smith v. Parrott that the doctrine is unavailable in Vermont. Smith,
2003 VT 64. The plaintiff patient in Smith consulted the defendant, a family practitioner,
regarding the loss of motor control in the patient’s foot. The family practitioner described the
patient’s condition as foot drop, a neurological condition in which the motor functions of the foot
and lower leg are diminished and terminated. The family practitioner referred the patient to a
neurosurgeon. When the patient consulted with the neurosurgeon eleven days later, the
neurosurgeon concluded that no possibility of any functional recovery existed. The patient
claimed that the family practitioner’s failure to arrange for an immediate neurological
examination caused the patient’s condition to deteriorate to the point of permanence. The patient
relied upon statements from an expert witness who testified at deposition that an earlier
consultation with a neurosurgeon might have yielded a “fifty-fifty chance of some recovery.” Id.
¶ 6. The expert later revised his opinion downwards, so that his estimation of the patient’s
chances of recovery was actually less than fifty percent. Both of the experts’ opinions regarding
a less-than-fifty-percent chance of recovery supported a theory of the case that relied squarely
upon the loss-of-chance doctrine.
¶ 10. We recognized in Smith that the loss-of-chance doctrine is “fundamentally at
odds with the settled common law standard . . . for establishing a causal link between the
plaintiff’s injury and the defendant’s tortious conduct.” Id. ¶ 12 (citing 12 V.S.A. § 1908(3)).
We also discussed 12 V.S.A. § 1908, which provides that in bringing a malpractice case against a
medical professional,
[T]he plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of
care ordinarily exercised by a reasonably skillful, careful, and
prudent health care professional engaged in a similar practice
under the same or similar circumstances whether or not within the
state of Vermont.
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(2) That the defendant either lacked this degree of knowledge or
skill or failed to exercise this degree of care; and
(3) That as a proximate result of this lack of knowledge or skill or
the failure to exercise this degree of care the plaintiff suffered
injuries that would not otherwise have been incurred.
12 V.S.A. § 1908 (emphasis added). Section 1908 “essentially codifies the common law
elements of a medical malpractice action,” which “have traditionally included a requirement that
the plaintiff adduce evidence of a reasonable probability or reasonable degree of medical
certainty that the defendant’s conduct caused the injury.” Smith, 2003 VT 64, ¶ 11 (quotations
omitted). We declined to depart from these “strict statutory requirements,” id. ¶ 13, concluding
that “the decision to expand the definition of causation and thus the potential liability of the
medical profession in Vermont ‘involves significant and far-reaching policy concerns’ more
properly left to the Legislature.” Id. ¶ 14 (quoting Crosby v. United States, 48 F.Supp. 2d 924,
931 (D. Alaska 1999)).
¶ 11. Plaintiffs’ claim against defendant is similar to the claim in Smith, but unlike the
expert in Smith, Dr. Javitt ultimately testified that “more likely than not [Mr. Tillson] would
have wound up with a better result” if he received a “timely consultation” with a specialist.
¶ 12. The superior court believed Dr. Javitt’s testimony lacked specific information
about the result of the negligence. However, Dr. Javitt’s stated opinion was that a vitrectomy
would have resulted in “[s]omething that was substantially better than [Mr. Tillson] ended up
with.” Dr. Javitt called it “functional vision” in his left eye if Mr. Tillson had been treated with a
vitrectomy and antibiotics. Dr. Javitt defined “functional vision” as vision that would have
enabled Mr. Tillson to read large print.
¶ 13. We acknowledge that a portion of Dr. Javitt’s testimony regarding the degree of
vision that Mr. Tillson would have retained is equivocal. Nevertheless, “[b]ecause of its severe
consequences, summary judgment should be granted cautiously so that no one will be improperly
deprived of a trial of disputed factual issues.” Provost v. Fletcher Allen Health Care, Inc., 2005
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VT 115, ¶ 17, 179 Vt. 545, 890 A.2d 97 (mem.) (quotation omitted). “Summary judgment is
improper where the evidence is subject to conflicting interpretations.” Id. ¶ 15; see also PH West
Dover Prop., LLC, v. Lalancette Engineers, 2015 VT 48, ¶ 31, ___ Vt. ___, ___ A.3d ___
(Dooley, J., dissenting) (“[If] reasonable people might disagree as to [the evidence’s]
significance, summary judgment is improper.” (quotation omitted)). Reading Dr. Javitt’s
deposition testimony in its entirety, Dr. Javitt rendered the expert opinion that there was at least a
fifty-one percent chance that Mr. Tillson would have had some meaningful degree of vision in
his left eye if he had received a timely referral to a retinologist. Although conflicting evidence
exists, this is not a Smith opinion.
¶ 14. Dr. Javitt’s statements at deposition indicate his opinion that Mr. Tillson’s total
loss of vision in his left eye would not have occurred if timely referral had been made to a
retinologist. The testimony “articulates a theory of the case sufficient to withstand summary
judgment.” Provost, 2005 VT 115 ¶ 9. This theory is that a reasonably skillful ophthalmologist
would have referred Mr. Tillson to a retinologist, and Dr. Lane’s failure to do so caused the
vision loss in Mr. Tillson’s left eye. In other words, a factual assertion exists in the case that but
for Dr. Lane’s departure from the standard of care exercised by a reasonably skillful
ophtalmologist, Mr. Tillson would not have suffered an injury. Cf. Wilkins v. Lamoille Cnty.
Mental Health Servs., Inc., 2005 VT 121, ¶¶ 13-14, 179 Vt. 107, 889 Vt. 245 (discussing
requirement for “but-for” causation in medical malpractice claims). Thus, Dr. Javitt’s deposition
testimony is sufficient evidence to withstand a motion for summary judgment.
Reversed and remanded.
FOR THE COURT:
Chief Justice
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