Vermont Certificate of Merit (Medical Malpractice)

CERTIFICATE OF MERIT

(Pursuant to 12 V.S.A. § 1042)

STATE OF VERMONT

SUPERIOR COURT — CIVIL DIVISION

[COUNTY] UNIT

CERTIFICATE OF MERIT PURSUANT TO 12 V.S.A. § 1042

I, [ATTORNEY FULL NAME], Esq., counsel for Plaintiff [PLAINTIFF FULL NAME], being duly authorized and admitted to practice before the courts of the State of Vermont, hereby certify under 12 V.S.A. § 1042 and pursuant to Vt. R. Civ. P. 11 as follows:

1. Filing Status

1.1. This Certificate of Merit is filed simultaneously with the Complaint in the above-captioned action, in strict compliance with 12 V.S.A. § 1042(a) and the holding of McClellan v. Haddock, 2017 VT 13.

1.2. ☐ This is the original Certificate filed at the time of the complaint.
1.3. ☐ Alternatively, this Certificate is filed within the 90-day window following the petition and grant of automatic extension of the statute of limitations under 12 V.S.A. § 1042(d), and within the simultaneous-filing requirement applied to the operative complaint filed on [DATE].

2. Consultation with Qualified Health Care Provider(s)

2.1. Prior to the filing of the Complaint, the undersigned consulted with one or more health care providers (the "Consulting Expert(s)") qualified under Vt. R. Evid. 702 to render an opinion regarding the standard of care, breach, and causation as to each Defendant named in the Complaint.

2.2. The Consulting Expert(s) possess the requisite knowledge, skill, experience, training, or education in the relevant medical specialty, equivalent to or exceeding that of each Defendant whose conduct is the subject of this action, including:

2.3. The undersigned has provided the Consulting Expert(s) with the relevant medical records, imaging, and other reasonably available evidence concerning Plaintiff's care, including but not limited to: [LIST KEY RECORDS REVIEWED — e.g., admission records of [DATE], operative reports, pathology, discharge summary, imaging studies of [DATE], office records of [DATE RANGE]].

3. Required Certifications as to Each Defendant

Pursuant to 12 V.S.A. § 1042(a), based on the information reasonably available at the time this Certificate is rendered, the Consulting Expert(s) have indicated to the undersigned, and the undersigned hereby certifies, with respect to each Defendant identified below:

3.1 As to Defendant [DEFENDANT 1 FULL NAME], [CREDENTIAL]:

3.1.1. Standard of Care. The applicable standard of care for a [SPECIALTY — e.g., board-certified general surgeon] under the same or similar circumstances includes, without limitation, [DESCRIBE STANDARD — e.g., timely interpretation of imaging, recognition of post-operative complications, appropriate use of diagnostic testing, etc.].

3.1.2. Reasonable Likelihood of Breach. There is a reasonable likelihood that the Plaintiff will be able to show, by competent expert testimony, that Defendant [DEFENDANT 1] failed to meet that standard of care in that [SUMMARIZE BREACH — e.g., failed to timely diagnose [CONDITION], failed to order indicated imaging, failed to obtain surgical consult, etc.].

3.1.3. Reasonable Likelihood of Causation. There is a reasonable likelihood that the Plaintiff will be able to show, by competent expert testimony, that Defendant [DEFENDANT 1]'s breach proximately caused injury that Plaintiff would not otherwise have incurred, including [SUMMARIZE INJURY CAUSED — e.g., progression of [CONDITION], need for additional surgery, permanent impairment, death, etc.].

3.2 As to Defendant [DEFENDANT 2 FULL NAME], [CREDENTIAL]:

3.2.1. Standard of Care. The applicable standard of care for a [SPECIALTY] under the same or similar circumstances includes, without limitation, [DESCRIBE STANDARD].

3.2.2. Reasonable Likelihood of Breach. There is a reasonable likelihood that the Plaintiff will be able to show, by competent expert testimony, that Defendant [DEFENDANT 2] failed to meet that standard of care in that [SUMMARIZE BREACH].

3.2.3. Reasonable Likelihood of Causation. There is a reasonable likelihood that the Plaintiff will be able to show, by competent expert testimony, that Defendant [DEFENDANT 2]'s breach proximately caused injury that Plaintiff would not otherwise have incurred, including [SUMMARIZE INJURY CAUSED].

3.3 As to Defendant [HOSPITAL/INSTITUTION], by and through its agents, servants, and employees:

3.3.1. The standard of care applicable to [DEFENDANT HOSPITAL] and to its agents, servants, and employees acting within the scope of their agency or employment included, without limitation, [INSTITUTIONAL STANDARD — credentialing, supervision, staffing, policies and procedures].

3.3.2. There is a reasonable likelihood that Plaintiff will demonstrate that the Defendant Hospital, through its agents, servants, and employees, breached that standard.

3.3.3. There is a reasonable likelihood that Plaintiff will demonstrate that such breach proximately caused Plaintiff's injuries.

4. Multiple Consultations (12 V.S.A. § 1042(b))

4.1. ☐ The certifications above are based on a single consultation with one Consulting Expert, who is qualified under Vt. R. Evid. 702 as to all elements regarding all Defendants.

4.2. ☐ Alternatively, the certifications above are based on multiple consultations that, taken collectively, satisfy the requirements of 12 V.S.A. § 1042(a) as to each Defendant, as expressly permitted by 12 V.S.A. § 1042(b).

5. Reasonably Available Information

5.1. The certifications above are made based on the information reasonably available to the undersigned and the Consulting Expert(s) at the time of this Certificate. The undersigned acknowledges that additional discovery, including production of complete medical records, depositions, and electronic health record audit trails, may further inform — and may also alter the scope of — the opinions reflected in this Certificate.

6. Informed-Consent Exemption (Inapplicable / Applicable)

6.1. ☐ This action contains allegations beyond failure to obtain informed consent; therefore, the exemption in 12 V.S.A. § 1042(e) does not apply, and this Certificate is required.

6.2. ☐ Alternatively, the sole allegation against Defendant [____________] is failure to obtain informed consent under 12 V.S.A. § 1909, and as to that Defendant, the certificate-of-merit requirement does not apply pursuant to 12 V.S.A. § 1042(e). The certifications above are made for all other claims.

7. Counsel's Verification

7.1. The undersigned has personally reviewed the medical records, the consultation(s) with the Consulting Expert(s), and the legal pleadings in this action.

7.2. The undersigned represents and certifies that the foregoing is true and accurate to the best of counsel's knowledge, information, and belief, formed after reasonable inquiry as required by 12 V.S.A. § 1042 and Vt. R. Civ. P. 11.

7.3. The undersigned acknowledges that under McClellan v. Haddock, 2017 VT 13, and Quinlan v. Five-Town Health Alliance, Inc. (Vt. Super. 2017), failure to satisfy 12 V.S.A. § 1042 in strict terms is grounds for dismissal of the action without prejudice (subject to refiling within any remaining limitations period).

DATED at [TOWN], Vermont, this [____] day of [__________], 20[____].

___________________________________
[ATTORNEY FULL NAME], Esq.
Vermont Bar No. [____________]
[FIRM NAME]
[ADDRESS]
[TOWN], VT [ZIP]
Tel: ([____]) [_______]
Email: [_______________]
Counsel for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that on this [____] day of [__________], 20[____], I served a true and correct copy of the foregoing Certificate of Merit, together with the Complaint, upon each Defendant via [METHOD OF SERVICE — e.g., personal service through Sheriff per Vt. R. Civ. P. 4; certified mail; agent for service of process].

___________________________________
[ATTORNEY FULL NAME], Esq.

ALTERNATIVE: PETITION FOR 90-DAY EXTENSION (12 V.S.A. § 1042(d))

STATE OF VERMONT

SUPERIOR COURT — CIVIL DIVISION

[COUNTY] UNIT

PETITION FOR AUTOMATIC 90-DAY EXTENSION OF STATUTE OF LIMITATIONS

NOW COMES Petitioner, by and through counsel, and pursuant to 12 V.S.A. § 1042(d), petitions this Court for the automatic 90-day extension of the statute of limitations applicable to the medical malpractice claim described herein, and in support states:

1. Petitioner anticipates filing a civil action alleging negligence by [PROSPECTIVE DEFENDANT(S)] arising out of medical care rendered on or about [DATE].

2. The applicable statute of limitations under 12 V.S.A. § 521 is presently calculated to expire on or about [DATE], based on [date of incident / date of discovery].

3. Counsel has retained or is in the process of retaining a qualified expert under Vt. R. Evid. 702 to evaluate the standard of care, breach, and causation as required by 12 V.S.A. § 1042, but additional time is required to permit a thorough and good-faith inquiry into the merits of the claim.

4. Pursuant to 12 V.S.A. § 1042(d), Petitioner is entitled to an automatic 90-day extension of the statute of limitations to complete the necessary inquiry.

WHEREFORE, Petitioner respectfully requests that this Court grant the automatic 90-day extension of the statute of limitations under 12 V.S.A. § 1042(d), thereby extending the limitations deadline to [DATE].

DATED: [____________]

___________________________________
[ATTORNEY FULL NAME], Esq.
Vermont Bar No. [____________]
Counsel for Petitioner

DRAFTING CHECKLIST — VERMONT COM

☐ Filed SIMULTANEOUSLY with complaint (12 V.S.A. § 1042(a); McClellan v. Haddock).
☐ Each Defendant addressed individually with all three elements (SOC / breach / causation).
☐ Expert qualification documented under Vt. R. Evid. 702 — credentials match Defendant credentials.
☐ Multiple consultations option invoked, if applicable (§ 1042(b)).
☐ Records reviewed enumerated.
☐ Informed-consent-only exemption considered (§ 1042(e)).
☐ If extension needed: 90-day petition under § 1042(d) filed BEFORE SOL expiration.
☐ Verification by counsel and Rule 11 signature.
☐ Certificate of Service attached.
☐ "Substantial compliance" is NOT a defense — confirmed via Quinlan v. Five-Town.

SOURCES AND REFERENCES

• 12 V.S.A. § 1042 (Certificate of Merit) — https://legislature.vermont.gov/statutes/section/12/027/01042
• 12 V.S.A. § 521 (SOL) — https://legislature.vermont.gov/statutes/section/12/023/00521
• 12 V.S.A. § 1908 (Burden of Proof) — https://legislature.vermont.gov/statutes/section/12/081/01908
• McClellan v. Haddock, 2017 VT 13 — https://law.justia.com/cases/vermont/supreme-court/2017/2017-vt-13.html
• Quinlan v. Five-Town Health Alliance, Inc. (Vt. Super. 2017) — https://law.justia.com/cases/vermont/superior-court/2017/189-11-16-ancv.html
• Vt. R. Evid. 702 — https://www.vermontjudiciary.org/rules
• Vt. R. Civ. P. 11 — https://www.vermontjudiciary.org/rules