Summary
The Vermont Supreme Court held that a medical malpractice action was not timely commenced because the plaintiff filed the defendants’ waiver of service after the sixty-day period required by Vermont Rules of Civil Procedure 3 and 4(1)(5). The court ruled that defendants’ lack of prejudice and actual notice did not excuse noncompliance or toll the statute of limitations. The court also declined to permit amendment to allege fraudulent concealment and reversed the trial court’s ruling, dismissing the action.
Topics
Practice areas
Questions Presented
- Whether plaintiff commenced the medical malpractice action within the statute of limitations when the defendants' waiver of service was signed within, but filed with the court after, the sixty-day period required by Vermont Rules of Civil Procedure 3 and 4(1)(5).
- Whether the late filing could be excused because defendants had actual notice and suffered no prejudice.
- Whether plaintiff's informed-consent allegations sufficiently pleaded fraudulent concealment to avoid the statute-of-limitations bar or warrant remand to amend the complaint.
Holdings
- A plaintiff who relies on waiver of service must file the signed waiver with the court within the sixty-day period required by V.R.C.P. 3; filing the waiver after that period fails to commence the action before expiration of the statute of limitations.
- Defendants' notice of the action and lack of prejudice do not excuse plaintiff's failure to timely file the waiver of service or otherwise effect proper service.
- Allegations supporting a lack-of-informed-consent negligence claim did not plead fraudulent concealment with particularity and did not provide a basis to toll the statute of limitations or remand for amendment.
Key quotations
“When the plaintiff files a waiver of service with the court, the action shall proceed ... as if a summons and complaint had been served at the time of filing the waiver” (175 Vt. at 543)
“The issue here is not one of failure to give effective notice of plaintiffs claim, but instead whether plaintiffs failure to file defendants’ waiver of service within the time required by the rules constituted a failure to properly commence plaintiffs action and toll the applicable statute of limitations.” (175 Vt. at 544)
“Had plaintiff intended to bring an action for fraudulent concealment, she could have done so before the statute of limitations expired.” (175 Vt. at 546)
Factual background
Jean Fercenia alleged that cataract surgery performed by Dr. Robert Guiduli on July 28, 1998, resulted in improper placement of a lens in her left eye. She filed a five-count complaint on July 27, 2001, asserting medical negligence, res ipsa loquitur, breach of contract, lack of informed consent, and respondeat superior liability. Although defendants signed a waiver of service on September 26, 2001, plaintiff did not file the waiver with the court until October 1, 2001, after the Rule 3 sixty-day period had expired.
Procedural history
Plaintiff filed a medical malpractice complaint on July 27, 2001, based on surgery performed on July 28, 1998. Defendants signed a waiver of service on September 26, 2001, but plaintiff did not file the waiver with the court until October 1, 2001, after the sixty-day service period had expired. The trial court denied defendants' motion for judgment on the pleadings, reasoning that defendants were not prejudiced by the late filing. The Supreme Court of Vermont granted interlocutory review, reversed, and dismissed the action.
Remand instructions
None. The court declined to remand for amendment and dismissed the action.