## Facts

- On July 31, 1995, Stephen L. Smith awoke with no motor control in his left foot (“foot drop”) and saw Thomas B. Parrott, M.D., a family practitioner, the same day.
- Smith had a history of two prior back surgeries; Parrott documented a dramatic left foot drop and referred Smith to a neurosurgeon.
- Smith was evaluated on August 11, 1995 by a neurosurgeon at Dartmouth–Hitchcock Medical Center, who concluded the condition was complete/permanent with no possibility of functional recovery.
- Smith later had surgery in early September 1995 for pain relief, but motor function did not improve.
- Smith sued Parrott for medical malpractice, alleging Parrott negligently failed to advise and arrange an immediate neurological examination and that the delay caused Smith’s condition to become permanent.
- In support of summary judgment, Parrott relied on deposition testimony indicating Smith’s foot drop was complete weeks before the August 11 examination and that the timing of surgery did not affect recovery.
- Smith relied on an expert who suggested earlier consultation might have provided a 50–50 chance of some recovery, but conceded the chance of a good recovery was probably less than 50%.

## Issues

1. Whether the evidence created a triable issue that Parrott’s alleged negligence was a probable (more-likely-than-not) cause of Smith’s permanent paralysis under Vermont proximate-cause standards.
2. Whether Vermont should recognize a loss-of-chance theory of recovery in medical malpractice when negligence reduces the chance of a better outcome even if that chance is below 50%.

## Decision

- The Vermont Supreme Court affirmed summary judgment for Parrott.
- The court held Smith failed to produce evidence that Parrott’s alleged negligence was more likely than not the cause of Smith’s permanent paralysis.
- The court declined to adopt loss-of-chance as an independent basis for liability in Vermont medical malpractice actions.

## Legal Principles

- In Vermont medical malpractice cases, a plaintiff must prove the defendant’s negligence was a but-for cause of the injury and, more likely than not, the cause of the injury; proof of mere possibility or increased risk is insufficient.
- Expert testimony indicating less than a 50% likelihood of a better outcome does not satisfy Vermont’s “probable cause” requirement for proximate causation.
- Vermont does not recognize loss-of-chance recovery because it conflicts with Vermont’s causation requirements and would entail broad policy consequences better left to the legislature.

## Conclusion

The court affirmed judgment for the defendant because the plaintiff’s evidence did not show that the alleged delay probably caused the permanent injury, and Vermont law does not permit recovery solely for a reduced chance of improvement when traditional causation cannot be proved.


Smith v. Parrott, 175 Vt. 375, 833 A.2d 843 (Vt. 2003)