This was a medical malpractice and wrongful death case of a newborn baby. The issue on appeal to the Vermont Supreme Court was whether the defendants’ (two physicians and hospitals) motion to dismiss predicated on the plaintiff’s (the family of the newborn) failure to timely serve summonses on these defendants was justified.
The parents of the newborn baby alleged that on June 12, 2012 their son died as a result of medical malpractice at the defendant hospital and at the hands of two physicians, who were claimed to have been negligent in their care and treatment or lack of it.
The plaintiffs filed their complaints against both sets of defendants on June 20, 2014. Under the applicable code of civil procedure, the plaintiffs had 60 days to serve the defendants with summonses. On Aug. 18, 2014, the day before the 60-day period was set to expire, plaintiffs moved for an enlargement of time for service, requesting that the court extend the deadline for service of process “for an additional sixty (60) days.”
The motion was based on a series of unexpected tragedies in the life of plaintiffs’ counsel, including the death of his brother on May 26, 2014 and his father on June 27, 2014. The trial court signed and handwrote “Granted” on plaintiffs’ motion on Aug. 29, 2014 without providing a new specified date by which service had to be completed. That order was entered on Sept. 2, 2014. Service was perfected on the doctors on Oct. 23, 2014. The hospital defendants were served by notice on Oct. 23, 2014 and waived service of summons.
On Nov. 19, 2014, the doctors filed a motion to dismiss the claims against them under the state civil procedure law on the ground that the court’s extension of time began on the original deadline of Aug. 19, 2014 rather than on Aug. 29, 2014, when the court granted the order, or Sept. 4, 2014, when the court issued the order.
The hospital defendants also filed a motion to dismiss on the ground that the additional time granted by the court to complete service expired when plaintiffs filed their waiver of service on Dec. 3, 2014.
On Feb. 8, 2015, the trial judge denied all of the defendants’ motions to dismiss based on the perfected service of summonses. In the decision, the trial judge stated that based on his “subjective intent” and fairness to the plaintiffs, it was “clear” the original extension of 60 days was intended to begin the day it was granted. With regard to the hospital defendants, the court ruled that the waiver of service of summons was signed within the 60 days allowed to plaintiffs and that the case against the hospital defendants would not be dismissed “based only” on plaintiffs’ delay in filing the return of service because of the state’s long-standing preference for having cases resolved on the merits.”
The trial judge’s reason for denying the motions to dismiss applicable to the physicians and hospital defendants, was its finding of excusable neglect and the determination that it can extend the period for service retroactively despite the expiration of the limitation period. This issue was never decided in another opinion in Vermont.
The court turned to other jurisdictions to comment that the states are split on the resolution of this question. In consideration of all of the facts and opinions of the court, the state Supreme Court concluded that the action of the trial judge was consistent with the holding in other cases even though it is an extension of those holdings.
Service is a procedural matter controlled by the rules. The court went on to state that “we are not persuaded that the limitation period irretrievably expired when service initially was not made during the period allotted for it… But it was not acted on until after the service period expired.”
The trial judge had found five reasons for excusable neglect in the late service here. This state Supreme Court turned to the U.S. Supreme Court for guidance. As to the personal events cited by plaintiffs’ counsel, standing alone those events would likely not have met the standard of excusable neglect. However, the trial court relied upon the combined effects of the numerous personal circumstances that confronted plaintiffs’ counsel, labeling them “compelling” and “unanticipated and unavoidable setbacks of unusual proportion.” The state Supreme Court concluded that evaluating such a combination of unusual circumstances, the court may apply it discretion which it did in denying the motions. The court’s decisions on those motions were not an abuse of discretion. The trial court having exercised its discretion here to find excusable neglect, the state Supreme Court affirmed the decision to extend the time for service under the state code of civil procedure and affirmed.
Clark v. Richard Baker, M.D., Mary Beerworth, M.D., et al., No. 2016 VT 42, September 2015.
Kreisman Law Offices has been handling wrongful death cases, birth injury cases, medical negligence cases and hospital negligence cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Palos Park, Hickory Hills, Countryside, Alsip, Matteson, Melrose Park, Berkeley, Forest Park, Elmwood Park, Norridge, Calumet Park, Harvey, Calumet City, Midlothian, Orland Park, Dolton, East Hazel Crest, Elgin, Elk Grove Village, Elmwood Park, Evergreen Park, Franklin Park, Burr Ridge, Bedford Park, Hillside and Hazel Crest, Ill.
Related blog posts:
Jury Enters $10.93 Million Verdict for Doctor’s Failure to Take Adequate History of Pregnant Patient