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H.427 1
Introduced by Representative Galfetti of Barre Town 2
Referred to Committee on 3
Date: 4
Subject: Court procedure; medical malpractice actions 5
Statement of purpose of bill as introduced: This bill proposes to establish 6
limits on the amount of damages recoverable in medical malpractice actions 7
and to establish pretrial screening panels for medical malpractice claims. 8
An act relating to medical malpractice actions 9
It is hereby enacted by the General Assembly of the State of Vermont: 10
Sec. 1. 12 V.S.A. § 1914 is added to read: 11
§ 1914. MEDICAL MALPRACTICE; LIMITATIONS ON DAMAGES 12
(a) The damages awarded for pain and suffering or other noneconomic loss 13
in an action based on medical malpractice shall not exceed the amount of: 14
(1) $250,000.00 per claimant if the defendant is a natural person; and 15
(2) $500,000.00 per claimant and $250,000.00 per defendant if the 16
defendant is not a natural person. 17
(b) The damages awarded for wrongful death in an action based on medical 18
malpractice shall not exceed the amount of $500,000.00 per claimant. 19 BILL AS INTRODUCED H.427
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(c) The amount of punitive damages awarded shall not exceed $200,000.00 1
or twice the total of economic and noneconomic losses, whichever is greater. 2
Sec. 2. 12 V.S.A. chapter 223 is added to read: 3
CHAPTER 223. SCREENING PANELS FOR 4
MEDICAL INJURY CLAIMS 5
§ 7401. FINDINGS, PURPOSE, AND INTENT 6
(a) Availability and affordability of insurance against liability for medical 7
injury is essential for the protection of patients as well as ensuring availability 8
of and access to essential medical and hospital care. This chapter affirms the 9
intent of the General Assembly to contain the costs of the medical injury 10
reparations system and to promote availability and affordability of insurance 11
against liability for medical injury. Claims for medical injury should be 12
resolved as early and inexpensively as possible to contain system costs. 13
Claims that are resolved before court determination cost less to resolve than 14
claims that must be resolved by a court. Meritorious claims should be 15
identified as quickly as possible, as should nonmeritorious claims. Defendants 16
should consider paying or compromising on meritorious claims, and plaintiffs 17
should consider withdrawing or compromising on nonmeritorious claims, as 18
soon as the merits of the claims are known to the parties. Presentation of 19
claims to a medical review panel is intended to help identify both meritorious 20
and nonmeritorious claims without the delay and expense of a court trial. It is 21 BILL AS INTRODUCED H.427
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essential to the effectiveness of the panel process that panel proceedings be 1
confidential unless and until a matter heard by a panel proceeds to trial. It is 2
equally essential to the effectiveness of the panel process that a panel’s 3
unanimous findings be presented to the jury in any matter that is not resolved 4
prior to trial. The panel process will encourage the prompt resolution of claims 5
because both sides will be given an objective view of the merits. If the panel 6
finds that a claim has merit, the defendant will be more likely to pay the claim 7
or negotiate a compromise that is favorable to the claimant. If the panel finds 8
that the claim lacks merit, the claimant is more likely to withdraw the claim or 9
accept a nominal settlement. 10
(b) The purposes of pretrial screening panels are: 11
(1) to identify claims of professional negligence that merit compensation 12
and to encourage early resolution of those claims prior to commencement of a 13
lawsuit; and 14
(2) to identify claims of professional negligence and to encourage early 15
withdrawal or dismissal of nonmeritorious claims. 16
§ 7402. DEFINITIONS 17
As used in this chapter: 18
(1) “Action for medical injury” means any action against a medical care 19
provider, whether based in tort, contract, or otherwise, to recover damages on 20
account of medical injury. 21 BILL AS INTRODUCED H.427
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(2) “Medical care provider” means a physician, physician assistant, 1
registered or licensed practical nurse, hospital, clinic, or other health care 2
agency licensed by the State or otherwise lawfully providing medical care or 3
services, or an officer, employee, or agent thereof acting in the course and 4
scope of employment. 5
(3) “Medical injury” or “injury” means any adverse, untoward, or 6
undesired consequences arising out of or sustained in the course of 7
professional services rendered by a medical care provider, whether resulting 8
from negligence, error, or omission in the performance of such services; from 9
rendition of such services without informed consent or in breach of warranty or 10
in violation of contract; from failure to diagnose; from premature abandonment 11
of a patient or of a course of treatment; from failure properly to maintain 12
equipment or appliances necessary to the rendition of such services; or 13
otherwise arising out of or sustained in the course of such services. 14
§ 7403. FORMATION AND PROCEDURE 15
(a) The Supreme Court shall maintain a list of retired judges, persons with 16
judicial experience, and other qualified persons to serve on screening panels 17
under this chapter from which the Chief Justice shall choose a panel chair 18
under subsection (b) of this section. The Court shall maintain lists of health 19
care practitioners and attorneys with litigation experience, recommended by 20
their respective professional organizations to serve on screening panels under 21 BILL AS INTRODUCED H.427
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this chapter. As directed by the Court, the professional organization of each 1
profession shall inform the Court of the names of volunteers to serve on 2
panels. 3
(b) Screening panel members shall be selected as follows: 4
(1) Upon the entry of a medical injury case, the clerk of the Superior 5
Court in which the medical injury case is filed shall notify the Chief Justice of 6
the Supreme Court. 7
(2) Within 14 days following the return date, the Chief Justice shall 8
choose a retired judge, a person with judicial experience, or other qualified 9
person from the list maintained by the Court to serve as chair of the panel to 10
screen the claim. If at any time the Chair chosen under this subsection is 11
unable or unwilling to serve, the Chief Justice shall appoint a replacement 12
following the procedure in this subsection for the initial appointment of the 13
Chair. Persons other than retired judges or those with judicial experience may 14
be appointed as chair based on appropriate trial experience. If the Chief 15
Justice appoints as chair a person who is not a retired judge or who does not 16
have judicial experience, each side may make one challenge to the 17
appointment. 18
(3) The Chief Justice shall notify the clerk of the name of the person 19
designated to serve as chair and shall provide the clerk with the lists of health 20
care practitioners, health care providers, and attorneys maintained under this 21 BILL AS INTRODUCED H.427
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section. Upon notification of the Chief Justice’s choice of chair, the clerk shall 1
notify the Chair and the parties, and provide them with the lists of health care 2
practitioners, health care providers, and attorneys. The Chair shall choose two 3
or three additional panel members from the lists as follows: 4
(A) One attorney. 5
(B) One health care practitioner. If possible, the Chair shall choose a 6
practitioner who practices in the same specialty or profession as the person or 7
entity accused of professional negligence. 8
(C) Where the claim involves more than one person accused of 9
professional negligence, the Chair may choose a fourth panel member who is a 10
health care practitioner. If possible, the Chair shall choose a practitioner or 11
provider in the specialty or profession of a person accused. 12
(D) When agreed upon by all the parties, the list of available panel 13
members may be enlarged in order to select a panel member who is agreed to 14
by the parties but who is not on the Court’s list. 15
(4) The screening panel process is not intended to delay or postpone the 16
trial of a medical injury case. The Superior Court may establish a trial date 17
and all interim deadlines as it would in any other case. 18
(5) The Supreme Court shall establish the compensation of the panel 19
Chair if the Chair is not otherwise compensated by the State. Other panel 20
members shall serve without compensation or payment of expenses. 21 BILL AS INTRODUCED H.427
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(6) The clerk of the Superior Court in the unit in which a medical injury 1
case is filed shall, with the consent of the Supreme Court, provide clerical and 2
other assistance to the panel Chair. 3
(7) Only challenges for cause shall be allowed. If a panel member other 4
than the Chair is challenged for cause, the party challenging the member shall 5
notify the panel Chair. If the panel Chair finds cause for the challenge, the 6
Chair shall replace the panel member. If the Chair is challenged for cause, the 7
party challenging the Chair shall notify the Chief Justice, who shall replace the 8
Chair upon a finding of cause. 9
(8) The panel, through the Chair, shall have the same subpoena power as 10
exists for a Superior Judge. The Chair shall have sole authority, without 11
requiring the agreement of other panel members, to issue subpoenas. 12
(9) The Vermont Rules of Civil Procedure shall govern discovery 13
conducted under this chapter. The parties shall attempt in good faith to resolve 14
discovery issues themselves. The Chair shall rule on disputes regarding 15
discovery. Any person aggrieved by a Chair’s ruling regarding discovery may 16
appeal to the Civil Division of the Superior Court, which shall defer to the 17
Chair’s factual findings unless they are clearly erroneous. 18
§ 7404. PANEL PROCEDURES 19
(a) All documents filed with the Court in a medical injury action that are 20
part of the screening process are confidential. 21 BILL AS INTRODUCED H.427
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(b) Within 20 days after the return date, the person or persons accused shall 1
contact the claimant’s counsel and by agreement shall designate a timetable for 2
filing all the relevant medical and provider records necessary to a 3
determination by the panel. If the parties are unable to agree on a timetable 4
within 60 days after the return date, the claimant shall notify the Chair of the 5
panel. The Chair shall then establish a timetable for the filing of all relevant 6
records and reasonable discovery, which shall be filed at least 30 days before 7
any hearing date. The hearing shall be not later than six months from the 8
return date, except when the time period has been extended by the panel Chair 9
in accordance with this chapter. 10
(c) The pretrial screening may be bypassed if all parties agree upon a 11
resolution of the claim by trial. 12
(d) All parties to a claim may, by written agreement, submit a claim to the 13
binding determination of the panel. Both parties may agree to bypass the panel 14
for any reason or may request that certain preliminary legal affirmative 15
defenses or issues be litigated prior to submission of the case to the panel. The 16
panel shall have no jurisdiction to hear or decide, absent agreement of the 17
parties, dispositive legal affirmative defenses, other than comparative 18
negligence. The panel Chair may require the parties to litigate, by motion, 19
dispositive legal affirmative defenses in the Civil Division of the Superior 20
Court prior to submission of the case to the panel. Any such defense, as well 21 BILL AS INTRODUCED H.427
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as any motion relating to discovery that the panel Chair has chosen not to rule 1
on, may be presented by motion to the Court. 2
(e) Except as otherwise provided in this section, there shall be one 3
combined hearing for all claims under this section arising out of the same set 4
of facts. When a medical injury case has been filed against more than one 5
person accused of medical injury based on the same facts, the parties may, 6
upon agreement of all parties, require that hearings be separated. The Chair 7
may, for good cause, order separate hearings. 8
(f) All requests for extensions of time under this section shall be made to 9
the panel Chair. The Chair may extend any time period for good cause, except 10
that the Chair may not extend any time period that would result in the hearing 11
being held more than 11 months following the return date, unless good cause is 12
shown. 13
(g)(1)(A) On failure of the plaintiff to prosecute or to comply with rules or 14
any order of the Chair or if the plaintiff fails to attend a properly scheduled 15
hearing, and on motion by the Chair or any party, after notice to all parties has 16
been given and the party against whom sanctions are proposed has had the 17
opportunity to be heard and show good cause, the Chair may order appropriate 18
sanctions, which may include dismissal of the case. If any sanctions are 19
imposed, the Chair shall state the sanctions in writing and include the grounds 20
for the sanctions. 21 BILL AS INTRODUCED H.427
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(B) Unless the Chair or the panel in an order for dismissal specifies 1
otherwise, a dismissal under this subdivision (1) is with prejudice for purposes 2
of proceedings before the panel. A dismissal with prejudice is the equivalent 3
of a finding for the defendant on all issues before the panel. 4
(2)(A) On failure of a defendant to comply with the rules or any order of 5
the Chair, or if a defendant fails to attend a properly scheduled hearing, and on 6
motion by the Chair or any party, after notice to all parties has been given and 7
the party against whom sanctions are proposed has had the opportunity to be 8
heard and show good cause, the Chair may order appropriate sanctions, which 9
may include default. If any sanctions are imposed, the Chair shall state the 10
sanctions in writing and include the grounds for the sanctions. 11
(B) Unless the Chair or the panel in its order for default specifies 12
otherwise, a default under this subdivision (2) is the equivalent of a finding 13
against the defendant on all issues before the panel. 14
(3) Any person aggrieved by a Chair’s ruling regarding sanctions may 15
appeal to the Superior Court, which shall defer to the Chair’s factual findings 16
unless they are clearly erroneous. 17
§ 7405. HEARING 18
(a)(1) The claimant or a representative of the claimant shall present the 19
case before the panel. The person accused of professional negligence or that 20
person’s representative shall make a responding presentation. The panel shall 21 BILL AS INTRODUCED H.427
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afford the parties wide latitude in the conduct of the hearing including, but not 1
limited to, the right of examination and cross-examination by attorneys. 2
Depositions are admissible whether or not the person deposed is available at 3
the hearing. The Chair shall make all procedural rulings, which shall be final. 4
The Vermont Rules of Evidence shall not apply. Evidence shall be admitted if 5
it is the kind of evidence upon which reasonable persons are accustomed to 6
rely in the conduct of their affairs. The panel shall make findings upon 7
evidence presented at the hearing, the records, and any expert opinions 8
provided by or sought by the panel or the parties. 9
(2) After presentation by the parties, the panel may request additional 10
facts, records, or other information from either party to be submitted in writing 11
or at a continued hearing, which continued hearing shall be held as soon as 12
possible. The continued hearing shall be attended by the same members of the 13
panel who have sat on all prior hearings in the same claim, unless otherwise 14
agreed by all parties. Replacement panel members shall be appointed pursuant 15
to this chapter. 16
(b) The panel shall maintain an electronically recorded record. Except as 17
provided in section 7408 of this title, the record shall not be made public, and 18
the hearings shall not be public without the consent of all parties. 19
(c) The Chair of the panel shall attempt to mediate any differences of the 20
parties before proceeding to findings. 21 BILL AS INTRODUCED H.427
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§ 7406. FINDINGS BY PANEL 1
(a) At the conclusion of the presentations, the panel shall make its findings 2
regarding negligence and causation in writing within 30 days by answering the 3
following questions: 4
(1) whether the acts or omissions complained of constitute a deviation 5
from the applicable standard of care by the medical care provider charged with 6
that care; 7
(2) whether the acts or omissions complained of proximately caused the 8
injury complained of; and 9
(3) if fault on the part of the medical care provider is found, whether any 10
fault on the part of the patient was equal to or greater than the fault on the part 11
of the provider. 12
(b) The standard of proof used by the panel shall be as follows: 13
(1) The plaintiff shall prove negligence and proximate causation by a 14
preponderance of the evidence. 15
(2) The defendant shall prove comparative negligence by a 16
preponderance of the evidence. 17
§ 7407. NOTIFICATION OF FINDINGS 18
The panel’s findings, signed by the panel members, indicating their vote, 19
shall be sent by registered or certified mail to the parties within seven days 20
following the date of the findings. The findings and record of the hearing shall 21 BILL AS INTRODUCED H.427
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be preserved until 30 days after final judgment or final resolution of the case, 1
after which time they shall be destroyed. All medical and provider records 2
shall be returned to the party providing them to the panel. 3
§ 7408. CONFIDENTIALITY AND ADMISSIBILITY 4
(a) Except as provided in this section, all proceedings before the panel, 5
including its final determinations, shall be treated as private and confidential 6
by the panel and the parties to the claim. 7
(1) The findings and other writings of the panel and any evidence and 8
statements made by a party or a party’s representative during a panel hearing 9
are not admissible in Court, shall not be submitted or used for any purpose in a 10
subsequent trial, and shall not be publicly disclosed, except as follows: 11
(A) Any testimony or writings made under oath may be used in 12
subsequent proceedings for purposes of impeachment. 13
(B) The party who made a statement or presented evidence may 14
agree to the submission, use, or disclosure of that statement or evidence. 15
(2) If the panel findings as to both the questions under subdivisions 16
7406(a)(1) and (2) of this title are unanimous and unfavorable to the defendant, 17
the findings are admissible in any subsequent trial of the medical injury case. 18
(3) If the panel findings as to any question under subsection 7406(a) of 19
this title are unanimous and unfavorable to the plaintiff, the findings are 20
admissible in any subsequent trial of the medical injury case. 21 BILL AS INTRODUCED H.427
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(b) The confidentiality provisions of this section shall not apply if the 1
findings were influenced by fraud. 2
(c) The deliberations and discussion of the panel and the testimony of any 3
expert, whether called by a party or the panel, shall be privileged and 4
confidential, and no such person may be asked or compelled to testify at a later 5
court proceeding concerning the deliberations, discussions, findings, or expert 6
testimony or opinions expressed during the panel hearing, unless by the party 7
who called and presented the nonparty expert, except such deliberation, 8
discussion, and testimony as may be required to prove an allegation of fraud. 9
§ 7409. MANDATORY INSTRUCTIONS 10
(a) When panel findings are offered and admitted into evidence in a 11
subsequent court action in accordance with section 7408 of this title, the Court 12
shall provide the following information to the jury to provide a basis for the 13
jury to understand the nature of the panel findings and to put the panel findings 14
in context in evaluating all of the evidence presented at the trial: 15
(1) The panel process is a preliminary procedural step through which 16
malpractice claims proceed. 17
(2) The panel in this case consisted of (insert the name and identity of 18
the members). 19
(3) The panel conducts a summary hearing and is not bound by the rules 20
of evidence. 21 BILL AS INTRODUCED H.427
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(4) The hearing is not a substitute for a full trial and may or may not 1
have included all of the evidence that is presented at the trial. 2
(5) The jury is not bound by the findings of the panel, and it is the 3
jurors’ duty to reach their own conclusions based on all of the evidence 4
presented to them. 5
(6) The panel proceedings are privileged and confidential. 6
Consequently, the parties shall not introduce panel documents or present 7
witnesses to testify about the panel proceedings, and they shall not comment 8
on the panel findings or proceedings except as provided in subdivisions (1) 9
through (5) of this subsection. 10
(b) The information specified in subsection (a) of this section shall be 11
provided to the jury when the findings are admitted into evidence and when the 12
Court instructs the jury prior to submitting the case to the jury. 13
§ 7410. EFFECT OF PANEL FINDINGS 14
Unanimous findings entered by the panel under subsection 7606(a) of this 15
title shall be implemented as follows: 16
(1) If findings are in the plaintiff’s favor, the defendant shall promptly 17
enter into negotiations to pay the claim or admit liability. If liability is 18
admitted, the claim may be submitted to the panel, upon agreement of the 19
parties, for determination of damages. If the claim goes to a trial, the findings 20
of the panel are admissible as provided in subdivision 7408(a)(2) of this title. 21 BILL AS INTRODUCED H.427
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(2) If the findings are in the defendant’s favor, the plaintiff shall release 1
the claim or claims based on the findings, without payment, or be subject to the 2
admissibility of those findings under subdivision 7408(a)(3) of this title. 3
§ 7411. REPORTS 4
(a) The Court Administrator shall collect data on medical injury claims and 5
submit a report on the screening panel process to the House and Senate 6
Committees on Judiciary and to the Commissioner of the Department of 7
Financial Regulation on or before September 30 of each year. 8
(b) The report required by this section shall include the number of medical 9
injury cases filed, pending, and resolved; the number of panel hearings; and the 10
number of panel hearing days during the fiscal year ending on the June 30 11
preceding the report date. 12
(c) The report required by this section shall include, for medical injury 13
cases resolved during the fiscal year: 14
(1) The mean and median lengths of time from initial filing to final 15
resolution. 16
(2) The number and average settlement amount of cases that were 17
resolved prior to the panel hearing. 18
(3) The number and average settlement amount of cases that were 19
resolved after a panel hearing but before a trial. 20 BILL AS INTRODUCED H.427
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(4) The number and average settlement amount of cases that were 1
resolved by or after a jury verdict. 2
(d) The report required by this section shall include, for medical injury 3
cases in which a panel made findings during the fiscal year: 4
(1) the number of cases that fell into each of the following categories of 5
possible panel hearing results: 6
(A) unanimous for the plaintiff; 7
(B) majority for the plaintiff; 8
(C) unanimous for the defendant; and 9
(D) majority for the defendant; and 10
(2) the status, and, if applicable, the results of the cases in each of the 11
categories listed in subdivision (1) of this subsection. 12
(e) To the extent possible, the report required by this section shall include 13
comparative data from the previous five years. 14
(f) The Commissioner of Financial Regulation shall report to the House 15
and Senate Committees on Judiciary annually, on or before November 1 of 16
each year, on the medical malpractice market and the effects of the panel 17
process established in this chapter. The report shall include, but not be limited 18
to, the average rates of medical liability insurance for categories of medical 19
providers and specialties identified by the Commissioner, the frequency and 20 BILL AS INTRODUCED H.427
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severity of medical injury claims, and the time for resolution of medical injury 1
claims from first notice to final resolution. 2
(g) The Commissioner of Financial Regulation may adopt rules to collect 3
the data from insurers necessary to prepare the report required by this section. 4
To the extent the Commissioner collects information from insurers regarding 5
individual claims, loss adjustment and other expenses, reserves, indemnity 6
payments, or other financial information that is not otherwise reported to the 7
Commissioner and available to the public, the information shall be treated as 8
examination materials and kept confidential. 9
Sec. 3. EFFECTIVE DATE 10
This act shall take effect on July 1, 2025. 11