Introduced by Representative Koch of Barre Town
Subject: Court procedure; medical malpractice
Statement of purpose: This bill proposes the following provisions for medical malpractice actions:
(1) Requiring the plaintiff to file a certificate of qualified expert, stating the applicable standard of care, the alleged departure from the standard of care by the defendant, and how the departure from the standard of care proximately caused the plaintiff’s injury;
(2) Requiring damage awards to be reduced by any amount the plaintiff receives in compensation for his or her special damages under a contract, insurance agreement, or statute;
(3) Making an expression of regret or apology made by or on behalf of a health care provider inadmissible in any civil or administrative proceeding against the provider; and
(4) Establishing a mandatory mediation process.
AN ACT RELATING TO MEDICAL MALPRACTICE
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. 12 V.S.A. § 1910 is added to read:
§ 1910. MEDICAL MALPRACTICE ACTIONS; CERTIFICATE OF
(a) In an action based on medical malpractice, the plaintiff shall file a certificate of qualified expert with the complaint. The plaintiff shall serve a copy of the certificate upon each party to the action.
(b)(1) A certificate of qualified expert filed under this section shall state:
(A) The expert’s qualifications, which shall be sufficient to demonstrate a reasonable likelihood that the expert will be permitted to testify about the matter set forth in the complaint if a trial is held.
(B) The applicable standard of care.
(C) Facts demonstrating a prima facie departure from the standard of care by the defendant.
(D) How the departure from the standard of care proximately caused the plaintiff’s injury.
(2) A separate certificate of qualified expert shall be filed for each defendant.
(c) This section shall not limit the availability of discovery as to the basis of the certificate, the qualifications of the qualified expert, or any other matter as to which discovery is normally available.
(d)(1) Except as otherwise provided in this subsection, the court shall dismiss the action without prejudice upon motion by a party if:
(A) the plaintiff fails to file the certificate of qualified expert required under the section; or
(B) the court finds that the certificate of qualified expert fails to meet the standards established under this section.
(2) The court, upon motion filed at the time the complaint is filed, shall grant an extension of no more than 90 days for filing a certificate of qualified expert if:
(A) the limitations period applicable to the claim has expired; and
(B) the plaintiff demonstrates by affidavit that the failure to file the certificate was neither willful nor the result of gross negligence.
(e)(1) As used in this section:
(A) “Health care provider” means a medical doctor licensed to practice under chapter 23 of Title 26, an osteopathic physician licensed pursuant to subdivision 1750(9) of Title 26, an advance practice registered nurse licensed pursuant to subdivision 1572(4) of Title 26, or a physician’s assistant certified pursuant to section 1733 of Title 26, acting within the scope of the license under which the health care provider is practicing.
(B) “Qualified expert” means a health care provider who:
(i) has had active clinical experience, provided consultation relating to active clinical practice, or taught medicine in the defendant's specialty or a related field of health care within five years of the date of the alleged act or omission giving rise to the action; and
(ii) is board certified in the same or a related specialty as the defendant, if the defendant is board certified in a specialty.
(2) Subdivision (1)(B)(ii) of this subsection shall not apply if the defendant provides care or treatment to the plaintiff unrelated to the area in which the defendant is board certified.
(3) A qualified expert may not devote more than 20 percent of his or her annual professional activities to activities that directly involve testimony in personal injury claims.
(4) A qualified expert shall not be:
(A) A party to the action.
(B) An employee or partner of a party to the action; or
(C) An employee or stockholder of any professional corporation of which a party to the action is a stockholder.
(f) This section shall not be construed to expand, limit, or in any way affect the requirements and procedures for expert testimony.
Sec. 2. 12 V.S.A. § 1911 is added to read:
§ 1911. MEDICAL MALPRACTICE ACTIONS; DAMAGES; RECOVERY
BY PLAINTIFF FROM OTHER PERSONS; REMITTITUR
(a) If damages have been awarded in an action based on medical malpractice, a party may file a motion for remittitur on the grounds that the plaintiff has been or will be paid, reimbursed, or indemnified for at least part of his or her special damages under a contract, insurance agreement, or statute. The court shall provide all other parties to the action an opportunity to reply to the motion, and shall set it for hearing.
(b) If the court finds after the hearing that the plaintiff has been or will be paid, reimbursed, or indemnified for at least part of his or her special damages under a contract, insurance agreement, or statute, the court shall grant the motion for remittitur and order the damages award reduced by the amount the plaintiff has been or will be paid, reimbursed, or indemnified.
(c)(1) No damages award shall be reduced under this section on the basis of other amounts paid or payable to the plaintiff if a reduction on such grounds would be prohibited by state or federal law.
(2) No damages award assessed in whole or in part for future expenses, costs, or losses shall be reduced under this section unless:
(A) the court orders the defendant or the defendant's insurer to provide adequate security; or
(B) the defendant’s insurer is authorized to do business in this state and maintains reserves in compliance with rules of the department of banking, insurance, securities, and health care administration sufficient to assure payment of the amount by which the plaintiff’s future damages are reduced.
(d) Except as expressly provided by federal law, no person may recover from the plaintiff or assert a claim of subrogation against a defendant for any sum included in an order for remittitur of damages issued under this section.
(e) Nothing in this section shall be construed to limit motions for remittitur on any other grounds.
Sec. 3. 12 V.S.A. § 1912 is added to read:
§ 1912. EXPRESSION OF REGRET OR APOLOGY BY HEALTH CARE PROVIDER INADMISSIBLE
(a) An expression of regret or apology made by or on behalf of a health care provider, including an expression of regret or apology that is made in writing, orally, or by conduct, does not constitute a legal admission of liability for any purpose and shall be inadmissible in any civil or administrative proceeding against the health care provider, including any arbitration or mediation proceeding.
(b) In any civil or administrative proceeding against a health care provider, including any arbitration or mediation proceeding, the health care provider, or any other person who makes an expression of regret or apology on behalf of the health care provider, including an expression of regret or apology that is made in writing, orally or by conduct, may not be examined by deposition or otherwise with respect to the expression of regret or apology.
(c) As used in this section, “health care provider” shall have the meaning defined in subdivision 1910(e)(1)(A) of this title.
Sec. 4. 12 V.S.A. chapter 215 is amended to read:
CHAPTER 215. VOLUNTARY ARBITRATION
AND MANDATORY MEDIATION
Subchapter 1. Voluntary Arbitration
§ 7001. LISTS ESTABLISHED
* * *
Subchapter 2. Mandatory Mediation
§ 7020. PURPOSE
The purpose of mandatory mediation for medical malpractice cases is to reduce the cost and duration of litigation by providing an early opportunity for realistic settlement negotiations or, in the absence of settlement, narrowing issues and structuring discovery and trial preparation to avoid unnecessary delay and expenditure of resources by the parties and the court.
§ 7021. MEDICAL MALPRACTICE CASES; MANDATORY MEDIATION
(a) All parties in a medical malpractice action shall, at an early stage of the action and after an opportunity for limited discovery, engage in mediation with a medical malpractice mediator who is knowledgeable in the subject matter of the litigation.
(b) Except as otherwise provided in this subchapter, the court shall not schedule a medical malpractice action for trial until the following papers have been filed with the court:
(1) a joint stipulation that the parties have in good faith engaged in mediation regarding the dispute that is the subject of the action; and
(2) a mediator’s report required by section 7028 of this title.
§ 7022. MEDIATION ADMINISTRATOR; MEDICAL MALPRACTICE
(a) The court administrator shall designate a member of the court staff to serve as the mediation administrator to oversee the mandatory mediation program established by this subchapter and to perform all administrative functions associated with the program.
(b) The court administrator shall appoint and maintain a roster of medical malpractice mediators. To be eligible for the roster, a person shall be an attorney admitted to practice for not less than five years who has significant trial practice experience and medical malpractice expertise.
(c) The court administrator shall from time to time establish the fee to be paid for each case a mediator evaluates, except that the parties may agree to pay a greater amount if warranted by the circumstances. The cost of the mediator’s fee shall be shared equally by the parties.
§ 7023. MEDIATION BY STIPULATION
(a) In lieu of participating in a mediation under this subchapter, the parties may stipulate that the mediation session be performed by a person of their choosing for a fee upon which they agree. Mediation by stipulation is permitted if, no later than the date on which the parties are required to report their mediator selection to the mediation administrator under section 7024 of this title, they file with the mediation administrator and the court a stipulation signed by all parties and the mediator containing:
(1) the name and mailing address of the mediator chosen by the parties;
(2) a statement that all parties have agreed on the fee to be paid to the mediator, as well as each party’s share of the fees;
(3) the agreement of each party to participate in the mediation procedure;
(4) the agreement of the mediator to perform the mediation session in accordance with the rules of the court; and
(5) the date by which the mediator’s report required under section 7029 of this title will be filed.
(b) The court shall approve the stipulation unless it is clearly unreasonable, in which case the court shall hold a hearing on the stipulation and issue an appropriate order. If the time limits approved or ordered by the court are not met, the court shall notify the mediation administrator, who shall thereupon schedule a mediation session in accordance with this subchapter.
§ 7024. SELECTION OF MEDIATOR
(a) After all defendants have filed answers to the complaint, the mediation administrator shall send the parties a list of potential mediators from the roster established under subsection 7022(b) of this title. There shall be at least three potential mediators on the list, unless there are third-party defendants in the action, in which case there shall be at least four potential mediators on the list.
(b)(1) Within ten days after the list of potential mediators is sent under subsection (a) of this section, the parties shall notify the mediation administrator:
(A) that the parties have agreed to the selection of a mediator; or
(B) in the event that the parties have not agreed to the selection of a mediator, whether any of the parties elects to strike the name of a potential mediator from the list.
(2) An election to strike a potential mediator under subdivision (1)(B) of this subsection shall be made as follows:
(A) One potential mediator may be struck by agreement of all plaintiffs.
(B) One potential mediator may be struck by agreement of all defendants.
(C) One potential mediator may be struck by agreement of all
(c) The mediation administrator shall designate a mediator for the action who shall be:
(1) the mediator agreed to by the parties; or
(2) in the event that the parties have not agreed to the selection of a mediator, one of the mediators whose name was not struck under subdivision (b)(2) of this section.
(d) A mediator shall promptly disclose to the mediation administrator any facts known to the mediator which could disqualify him or her from serving as mediator. A party who believes that a potential or assigned mediator has a conflict of interest shall notify the mediation administrator within five days after learning of the possible conflict or is deemed to waive objection to it.
§ 7025. SCHEDULING OF MEDIATION SESSION
(a) The mediation session shall take place within 30 days after the completion of the deposition of expert witnesses. The mediator shall set the date of the mediation session in consultation with the parties. The mediation schedule shall be included in the discovery schedule filed with the court.
(b) The mediator may extend the date of the mediation session by no more than 60 days if the mediator finds that doing so would not delay a trial.
(c) Requests to extend the mediation date by more than 60 days, or for an extension of the mediation date which would delay the trial, shall be made by motion and shall be granted by the court only for good cause.
§ 7026. ATTENDANCE AT MEDIATION SESSION
(a) Except as provided in this section, every party shall personally attend the mediation session.
(b) When a party is not a natural person, a person with settlement authority for the party shall attend the mediation session.
(c) In all cases involving an insurance company, a representative of the company with settlement authority shall attend the mediation session.
(d) With respect to each party represented by counsel in the action, the attorney with primary responsibility for the case shall attend the mediation session.
(e) As used in this subchapter, “a person with settlement authority” means an individual, who may be an insurance company representative, with control of the financial settlement resources for the case, including insurance, and the authority to pledge those resources to settle a case on behalf of a party.
(f)(1) A motion to be excused from the mediation session shall be submitted to the court at least 15 days before the session date. The motion shall designate a substitute who shall attend the session in place of the person and shall describe the substitute’s familiarity with the case.
(2) The court may grant a motion filed under subdivision (1) of this subsection only if it finds that attending the mediation session will cause the movant unreasonable hardship. If the motion is granted, the excused person shall be available by telephone during the session. The court may in its order require that the person designated to attend the session as a substitute be replaced by a different person.
§ 7027. MEDIATION STATEMENTS
(a) Each party shall submit a mediation statement to the mediator and serve the statement on all parties no less than ten days before the mediation session.
(b) A mediation statement submitted under this section shall:
(1) not exceed ten pages, exclusive of exhibits and attachments;
(2) include a brief statement of facts;
(3) identify the issues of law and fact in dispute and summarize the party’s position on those issues;
(4) discuss whether there are issues of law or fact the early resolution of which could facilitate early settlement or narrow the scope of the dispute;
(5) identify the attorney who will represent the party at the mediation session and the person with settlement authority who will attend the mediation session;
(6) include any documents or materials relevant to the case which may assist the mediator and advance the purposes of the mediation session;
(7) present any other matters that may assist the mediator and facilitate the mediation.
(c) Mediation statements are intended solely to facilitate the mediation and shall not be filed with the court.
§ 7028. MEDIATION SESSION PROCEDURE
(a) The mediator shall have discretion to structure the mediation session in a manner that, in the mediator’s judgment, shall advance the purposes of the mediation session.
(b) The Vermont Rules of Evidence shall not apply in the mediation session, and there shall be no formal examination or cross-examination of witnesses.
(c) The parties shall be prepared to participate fully in the mediation session and to discuss the impact of failing to settle the case on case value, cost, and delay. The parties shall address all costs associated with trial and trial preparation, including costs of additional discovery, expert witnesses, and attorney’s fees.
(d) At the mediation session, the mediator shall:
(1) permit each party to make an oral presentation of his or her position;
(2) assist the parties to identify areas of agreement and, where possible, stipulate to issues that are not in dispute;
(3) assess the strengths and weaknesses of each party’s case and explain the reasoning behind the assessments;
(4) explore the possibility of settlement, using private caucusing and mediation techniques; and
(5) estimate, when requested by the parties and deemed appropriate by the mediator, the likelihood of liability and the range of damages.
(e) If the mediation session does not result in settlement, the mediator shall:
(1) discuss with the parties any follow-up measures which may promote efficient case development or future settlement, including additional mediation sessions, formal evaluations, or other alternative dispute resolution procedures; and
(2) assist the parties to develop an information sharing plan or discovery plan to expedite settlement discussion or position the case for efficient and timely disposition by other means.
§ 7029. MEDIATOR’S REPORT
(a) The mediator shall file a report with the court, and send copies of the report to the parties, within 15 days after the mediation session. The report shall include:
(1) the date of the mediation session, the time the session began, and the time the session ended;
(2) the names and roles of each person who attended the mediation session, including identification of the representative with settlement authority for each party;
(3) a summary of any substitute arrangement made regarding attendance at the session;
(4) the date the mediator received each party’s mediation statement;
(5) whether each party did or did not make an oral presentation of its position; and
(6) the results of the session, including:
(A) whether full or partial settlement was reached;
(B) any stipulations agreed to by the parties;
(C) any agreements to narrow the scope of the dispute, limit discovery, facilitate future settlement, hold another mediation session, or otherwise reduce the cost and time of trial preparation.
(b) Except as required to report the information required by subsection (a) of this section, the mediator’s report shall not disclose any substantive matters discussed during the session or the mediator’s assessment of any aspect of the case.
§ 7030. CONFIDENTIALITY
(a) Except as provided in subsections (b) and (c) of this section, all written and oral communications made in connection with or during the mediation process shall be confidential. The mediation process shall be treated as a settlement negotiation under Rule 408 of the Vermont Rules of Evidence.
(b) This section shall not apply to an agreement under subdivision 7029(a)(6)(C) of this title to narrow the scope of the dispute, limit discovery, hold another mediation session, facilitate future settlement, or otherwise reduce the cost and time of trial preparation.
(c) Parties, counsel, insurance representatives, and mediators may respond to inquiries from persons authorized by the court to monitor or evaluate the medical malpractice mediation program. The sources of data and opinions collected for this purpose shall be confidential.
§ 7031. TIME
Time limits under this chapter shall be calculated pursuant to Rule 6 of the Vermont Rules of Civil Procedure.
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