Gionet v. Dartmouth Hitchcock Med. Ctr., No. 135-2-09 Rdcv (Cohen, J., May 3, 2010)

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                                                STATE OF VERMONT
                                                 RUTLAND COUNTY

ALBERT J. GIONET                                                                )          Rutland Superior Court
                                                                                )          Docket No. 135-2-09 Rdcv
                                  Plaintiff,                                    )
                                                                                )
v.                                                                              )
                                                                                )
DARTMOUTH HITCHCOK MEDICAL                                                      )
CENTER, WILLIAM ROSEN, M.D., and                                                )
UNNAMED MEDICAL ASSISTANT,                                                      )
                                                                                )
                                  Defendants                                    )


      DECISION ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT,
                       FILED NOVEMBER 2, 2009

           This is a medical malpractice action brought by Albert Gionet, arising out of

surgery on his eyelid. Defendants Dartmouth Hitchcock Medical Center and William

Rosen, M.D., move for summary judgment. They argue that Plaintiff’s claim requires

expert medical testimony and that Plaintiff has failed to retain an expert. Plaintiff Albert

Gionet appears pro se. Defendants Dartmouth Hitchcock and Dr. Rosen are represented

by Kaveh S. Shahi, Esq.

                                           Summary Judgment Standard

           Summary judgment is appropriate where there is no genuine issue of material fact

and the party is entitled to judgment as a matter of law. V.R.C.P. 56(c)(3). In response to

an appropriate motion, judgment must be rendered "if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, . . . show

that there is no genuine issue as to any material fact and that any party is entitled to

judgment as a matter of law." V.R.C.P. 56(c)(3). In determining whether a genuine issue

of material fact exists, the Court accepts as true allegations made in opposition to the
motion for summary judgment, provided they are supported by evidentiary material.

Robertson v. Mylan Labs, Inc., 2004 VT 15, ¶ 15, 176 Vt. 356. The nonmoving party

then receives the benefit of all reasonable doubts and inferences arising from those facts.

Woolaver v. State, 2003 VT 71, ¶ 2, 175 Vt. 397. Furthermore, where, as here, "the

moving party does not bear the burden of persuasion at trial, it may satisfy its burden of

production by showing the court that there is an absence of evidence in the record to

support the nonmoving party's case. The burden then shifts to the nonmoving party to

persuade the court that there is a triable issue of fact." Ross v. Times Mirror, Inc., 164 Vt.

13, 18 (1995) (internal citations omitted).

                                        Background

       Dr. William Rosen performed eyelid surgery on Albert Gionet to drain a cyst. Mr.

Gionet was discharged from Dartmouth Hitchcock without complications. Afterwards,

his eye began bleeding and he went to Rutland Regional Medical Center for care. Mr.

Gionet describes his bleeding as life threatening. He alleges that Dr. Rosen committed

medical malpractice by not providing proper care after the surgery.

       On January 28, 2010, the Court issued an Order giving Mr. Gionet 30 days to

respond to the defendants’ request for expert disclosures. Mr. Gionet has failed to

disclose an expert medical witness.

                                         Discussion

       In a medical malpractice action, the plaintiff has the burden of proving (1) the

applicable standard-of-care, (2) that the defendant breached that standard, and (3) that as

a proximate result the plaintiff suffered injuries that would not otherwise have occurred.

Jones v. Block, 171 Vt. 569, 569 (2000) (mem.) (citing 12 V.S.A. § 1908(1)-(3)).




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       The standard-of-care and causation elements of professional negligence claims

ordinarily must be proved by expert testimony. Wilkins v. Lamoille County Mental Health

Services, Inc. and Copley Hospital, 2005 VT 121, ¶ 16, 179 Vt. 107. There is an

exception to this rule, however, where the alleged violation of the standard of care is so

apparent that it may be understood by a lay trier of fact without the aid of an expert.

Larson v. Candlish, 144 Vt. 499, 502 (1984) (citing Senesac v. Associates in Obstetrics

and Gynecology, 141 Vt. 310, 313 (1982)).

       The alleged violation of the standard of care for post-surgery eyelid treatment is

not so apparent that it may be understood by a lay trier of fact without the aid of an

expert. Therefore, the plaintiff must prove the applicable standard-of-care and causation

elements by expert testimony. See Wilkins, 2005 VT 121, ¶ 16. Plaintiff has not set forth

any expert evidence as to these elements.

       Defendants have shown the Court that there is an absence of expert testimony

evidence in the record, as required by law, to support Plaintiff’s claim. Plaintiff has failed

to proffer any expert testimony; thus, there is no triable issue of fact. See Ross v. Times

Mirror, Inc., 164 Vt. at 18. The defendants are entitled to judgment as a matter of law.

                                          ORDER

       Defendants’ Motion for Summary Judgment, filed November 2, 2009, is

GRANTED.

       Dated at Rutland, Vermont this _____ day of ________________, 2010.



                                                       ____________________
                                                       Hon. William Cohen
                                                       Superior Court Judge




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