Plaintiff in Tillson v. Lane suffered a serious eye infection following an elective surgery to remove a cataract that ultimately left him blind in that eye.
When he sued the surgeon for medical malpractice, the question was whether his surgeon, who made a presumptive diagnosis of endopthalmitis (a bacterial infection) acted appropriately, even though he did not refer patient to a specialist in light of this information.
Remember, the key to proving a claim of medical malpractice is not whether the outcome of a treatment or procedure was successful, but rather whether the clinician acted in a manner that was in accordance with the accepted standard of care for his or her practice. In this case, plaintiff alleged the physician and the eye care center breached the applicable duty of care by failing to adequately and timely diagnose and treat the infection. He sought damages for medical bills, and also asserts pain, suffering, psychological stress and loss of consortium (via his wife) due to his blindness.
Although the trial court in this case granted summary judgment to defendant, the Vermont Supreme Court reversed. Central to both rulings was the expert witness testimony of a plaintiff witness who is an expert on endopthalmitis. During his pre-trial deposition, the board-certified opthalmologist and former adjunct professor of opthalmology at a prestigious university testified plaintiff should have been immediately referred by his doctor to a retinologist for surgery.
The expert witness testified that had the defendant doctor done this, plaintiff would have more likely than not ended up with a better outcome. A key issue stemmed on the way he worded this sentiment, which is that had plaintiff undergone this treatment and received antibiotics, “He would have had a real chance versus no real chance of saving his sight.”
Defendants moved for summary judgment, arguing this amounted to “loss-of-chance” doctrine evidence, which is barred by Vermont courts (as well as by courts in South Carolina). The Loss-of-Chance doctrine is a legal principle that allows a plaintiff to obtain damages from a defendant for increased risk of injury or death, even if plaintiff can’t prove by a preponderance of the evidence (the standard in medical malpractice lawsuits) that defendant was negligent.
Trial court agreed that expert witness testimony amounted to “loss-of-chance” evidence, but the state supreme court reversed on appeal.
Although state supreme court justices noted there were some similarities between this case and the case that set the state precedent for loss-of-chance, the key difference was that here, the doctor testified it was “more likely than not” plaintiff would have received a better result had he received timely consultation with a specialist, by way of a referral from the doctor who performed the surgery and was responsible for his follow-up care.
State supreme court reversed summary judgment. It was not necessarily the court felt this was an open-and-shut case, but rather in the light most favorable to plaintiff, there were material issues of genuine fact that had yet to be resolved, and plaintiff deserved to take his case before a jury.
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Tillson v. Lane, October 2015, Vermont Supreme Court
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