Tillson v. Lane, No. 592-10-11 Wrcv (Teachout, J., September 8, 2014)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                                STATE OF VERMONT

SUPERIOR COURT                                                                                   CIVIL DIVISION
Windsor Unit                                                                               Docket No. 592-10-11 Wrcv



DOW TILLSON, et ux.,
    Plaintiffs

           v.

RICHARD A. LANE, M.D. et al.,
     Defendants



        Defendants’ Motion for Summary Judgment, filed April 8, 2014 (MPR #6)
                         Plaintiffs’ Response filed June 6, 2014
                         Defendants’ Reply filed June 26, 2014

       Defendants seek summary judgment in this medical malpractice action on the
grounds that Plaintiffs do not have expert testimony on an essential element of the claim.
Specifically Defendants claim that Plaintiffs’ expert’s testimony does not show that the
claimed deviation from the standard of care caused injury that otherwise would not have
occurred.

        Plaintiffs’ expert, Dr. Jonathan Javitt, M.D., testified at deposition that failure on
the part of Defendant Dr. Lane to consult with a retinal specialist on October 24, 2008 in
connection with the care of Plaintiff Dow Tillson was inconsistent with the standard of
care. He further testified that he did not know what a retinologist would have said,
although he suspected that a retinologist would have recommended a vitrectomy. The
parties dispute whether, based on Dr. Javitt’s use of the word “suspect,” his testimony
means that a retinologist would have rcommended a vitrectomy.

         The real issue, however, is whether the deviation from the standard of care—the
failure to consult a retinal specialist--caused injury to Mr. Tillson. Dr. Javitt’s testimony
was that if a retinologist had been consulted, Mr. Tillson would have had a ‘real chance’
as opposed to no chance of saving his eyesight, or would have had a ‘better result.’ Dr.
Javitt cannot, however, say what the outcome would have been.

        Defendants argue that this is insufficient to meet Plaintiffs’ obligation to present
expert testimony on the element of causation of injury. Plaintiffs argue that Dr. Javitt’s
testimony that Mr. Tillson’s vision would have been “better than he ended up with” is
sufficient.
        When Dr. Javitts was asked, “What were the chances [if timely consultation with
a retinologist had occurred]? What are the percentages of Mr. Tillson’s having had a
better result than he ended up with having, blindness?” He responded, “I think more
likely than not he would have wound up with a better result.” When asked to quantify
‘better result,’ he answered that “No, nobody can say what his vision would have been,”
although he opined that there would have been a better result if a timely intervention with
a retinologist had occurred.

        Based on the case of Smith v. Parrot, 2003 VT 64, the Court would be unable to
submit the case to the jury because the testimony is “loss of chance” evidence that does
not meet the statutory requirement that the Plaintiff offer expert testimony that as a
proximate result of the failure to meet the standard of care “the plaintiff suffered injuries
that would not otherwise have been incurred.” 12 V.S.A. § 1908 (3). To say that a
patient would have had a “better chance” of a “better result,” without being able to give
more specific information about the effect of the negligence, falls short of giving an
expert opinion that substandard conduct on the part of a medical professional caused an
injury.

      Accordingly, Defendants’ Motion for Summary Judgment is granted.
Defendants’ counsel shall submit a form of judgment.



       Dated this 4th day of September, 2014.


                                                       ____________________________
                                                       Hon. Mary Miles Teachout
                                                       Superior Judge




                                              2
