Expert Testimony That Plaintiff Had a Likelier-Than-Not-Chance of a Better Medical Outcome if Not For Defendant’s Negligence Was Not “Loss of Chance” Testimony and Was Sufficient to Survive Summary Judgment

In Tillson v. Lane and Lane Eye Associates, 2015 VT 121 (October 9, 2015), the Vermont Supreme Court reversed the trial court’s finding that an expert opinion that Plaintiff had a “likelier-than-not-chance” of a better medical outcome if not for Defendant’s negligence was not sufficient to withstand summary judgment.

Issue: Whether the testimony of Plaintiff’s expert – that Plaintiff would have had a likelier-than-not-chance of a better medical outcome but for Defendant’s actions – was sufficient to establish causality and survive a motion for summary judgment.

Holding: The Court reversed the trial court’s grant to summary judgment to Defendant ophthalmologist, who was sued when he did not refer Plaintiff patient to a retinologist, and Plaintiff subsequently went blind. The trial court granted summary judgment to Defendant because it determined that Plaintiff’s expert testimony amounted to “loss of chance” evidence, which is not sufficient to prove causation in Vermont. The Court reversed, however, because it found that Plaintiff’s expert testimony, while equivocal, amounted to saying that Plaintiff had at least a 51% chance of a meaningfully better outcome but for Defendant’s failure to refer him to a retinologist. The testimony, therefore, articulated a theory of causation sufficient to withstand summary judgment.