The Vermont Statutes Online

Title 12: Court Procedure

Chapter 081: Conduct of Trial

• Subchapter 001: Generally

• § 1901. Exclusion of public

  When a cause of scandalous or obscene nature is on trial, the presiding judge or the justice shall exclude therefrom all minors, unless necessarily present as parties or witnesses, and in his or her discretion, may exclude all persons not so present.

• § 1902. Repealed. 1969, No. 222 (Adj. Sess.), § 5.

• §§ 1903, 1904. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

• § 1905. Eminent domain; findings of damages; instructions to jury

  A trier of fact in proceedings to determine damages due the owner of land taken by a governmental body by eminent domain shall find separately the value of each element thereof specified in 19 V.S.A. § 501(2). When a judge submits the determination thereof to a jury, he or she shall instruct the jury that they shall bring in a special verdict on each of those elements involved in the case. (1961, No. 179.)

• § 1906. Repealed. 1959, No. 261, § 68.

• § 1907. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

• § 1908. Burden of proof

  For the purpose of this section, malpractice shall mean professional medical negligence comprised of the elements listed herein. In a malpractice action based on the negligence of the personnel of a hospital, a physician licensed under 26 V.S.A. chapter 23, a dentist licensed under 26 V.S.A. chapter 13, a podiatrist licensed under 26 V.S.A. chapter 7, a chiropractor licensed under 26 V.S.A. chapter 9, a nurse licensed under 26 V.S.A. chapter 27, or an osteopathic physician licensed under 26 V.S.A. chapter 33, the plaintiff shall have the burden of proving:

  (1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by a reasonably skillful, careful, and prudent health care professional engaged in a similar practice under the same or similar circumstances whether or not within the State of Vermont;

  (2) that the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and

  (3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred. (Added 1975, No. 250 (Adj. Sess.), § 2, eff. April 7, 1976.)

• § 1909. Limitation of medical malpractice action based on lack of informed consent

  (a) For the purpose of this section, “lack of informed consent” means:

  (1) the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation; or

  (2) the failure to disclose the information required by subsection (d) of this section.

  (b) The right of action to recover for medical malpractice based on a lack of informed consent shall not apply in the case of an emergency.

  (c) It shall be a defense to any action for medical malpractice based upon an alleged failure to obtain such an informed consent that:

  (1) the risk not disclosed is too commonly known to require disclosure and that the risk is not substantial;

  (2) the patient assured the medical practitioner he or she would undergo the treatment, procedure or diagnosis regardless of the risk involved, or the patient indicated to the medical practitioner that he or she did not want to be informed of the matters to which he or she would be entitled to be informed;

  (3) consent by or on behalf of the patient was not reasonably possible; or

  (4) a reasonably prudent person in the patient’s position would have undergone the treatment or diagnosis if he or she had been fully informed.

  (d) A patient shall be entitled to a reasonable answer to any specific question about foreseeable risks and benefits, and a medical practitioner shall not withhold any requested information.

  (e) A motion for judgment for the defendant at the end of plaintiff’s case must be granted as to any cause of action for medical malpractice based solely on lack of informed consent if the plaintiff has failed to adduce expert medical testimony in support of the allegation that he or she was not provided sufficient information as required by subdivision (a)(1) of this section. (Added 1975, No. 250 (Adj. Sess.), § 3, eff. April 7, 1976; 2009, No. 25, § 5.)

• §§ 1910, 1911. [Reserved for future use.]

• § 1912. Expression of regret or apology by health care provider inadmissible

  (a) An oral expression of regret or apology, including any oral good faith explanation of how a medical error occurred, made by or on behalf of a health care provider or health care facility, that is provided within 30 days of when the provider or facility knew or should have known of the consequences of the error, does not constitute a legal admission of liability for any purpose and shall be inadmissible in any civil or administrative proceeding against the health care provider or health care facility, including any arbitration or mediation proceeding.

  (b) In any civil or administrative proceeding against a health care provider or health care facility, including any arbitration or mediation proceeding, the health care provider, health care facility, or any other person who makes an oral expression of regret or apology, including any oral good faith explanation of how a medical error occurred, on behalf of the provider or facility, that is provided within 30 days of when the provider or facility knew or should have known of the consequences of the potential adverse outcome, may not be examined by deposition or otherwise with respect to the expression of regret, apology, or explanation.

  (c) As used in this section:

  (1) “Health care facility” shall have the same meaning as in 18 V.S.A. § 9402(6).

  (2) “Health care provider” shall have the same meaning as in 18 V.S.A. § 9402(7).

  (d) The liability protections afforded by subsections (a) and (b) of this section shall not be construed to limit access to information that is otherwise discoverable.

  (e) This section shall apply only to medical errors that occur on or after July 1, 2006. (Added 2005, No. 142 (Adj. Sess.), § 1.)

• § 1913. Blockchain enabling

  (a) As used in this section:

  (1) “Blockchain” means a cryptographically secured, chronological, and decentralized consensus ledger or consensus database maintained via Internet, peer-to-peer network, or other interaction.

  (2) “Blockchain technology” means computer software or hardware or collections of computer software or hardware, or both, that utilize or enable a blockchain.

  (b) Authentication, admissibility, and presumptions.

  (1) A digital record electronically registered in a blockchain shall be self-authenticating pursuant to Vermont Rule of Evidence 902, if it is accompanied by a written declaration of a qualified person, made under oath, stating the qualification of the person to make the certification and:

  (A) the date and time the record entered the blockchain;

  (B) the date and time the record was received from the blockchain;

  (C) that the record was maintained in the blockchain as a regular conducted activity; and

  (D) that the record was made by the regularly conducted activity as a regular practice.

  (2) A digital record electronically registered in a blockchain, if accompanied by a declaration that meets the requirements of subdivision (1) of this subsection, shall be considered a record of regularly conducted business activity pursuant to Vermont Rule of Evidence 803(6) unless the source of information or the method or circumstance of preparation indicate lack of trustworthiness. For purposes of this subdivision (2), a record includes information or data.

  (3) The following presumptions apply:

  (A) A fact or record verified through a valid application of blockchain technology is authentic.

  (B) The date and time of the recordation of the fact or record established through such a blockchain is the date and time that the fact or record was added to the blockchain.

  (C) The person established through such a blockchain as the person who made such recordation is the person who made the recordation.

  (D) If the parties before a court or other tribunal have agreed to a particular format or means of verification of a blockchain record, a certified presentation of a blockchain record consistent with this section to the court or other tribunal in the particular format or means agreed to by the parties demonstrates the contents of the record.

  (4) A presumption does not extend to the truthfulness, validity, or legal status of the contents of the fact or record.

  (5) A person against whom the fact operates has the burden of producing evidence sufficient to support a finding that the presumed fact, record, time, or identity is not authentic as set forth on the date added to the blockchain, but the presumption does not shift to a person the burden of persuading the trier of fact that the underlying fact or record is itself accurate in what it purports to represent.

  (c) Without limitation, the presumption established in this section shall apply to a fact or record maintained by blockchain technology to determine:

  (1) contractual parties, provisions, execution, effective dates, and status;

  (2) the ownership, assignment, negotiation, and transfer of money, property, contracts, instruments, and other legal rights and duties;

  (3) identity, participation, and status in the formation, management, record keeping, and governance of any person;

  (4) identity, participation, and status for interactions in private transactions and with a government or governmental subdivision, agency, or instrumentality;

  (5) the authenticity or integrity of a record, whether publicly or privately relevant; and

  (6) the authenticity or integrity of records of communication.

  (d) The provisions of this section shall not create or negate:

  (1) an obligation or duty for any person to adopt or otherwise implement blockchain technology for any purpose authorized in this section; or

  (2) the legality or authorization for any particular underlying activity whose practices or data are verified through the application of blockchain technology. (Added 2015, No. 157 (Adj. Sess.), § I.1; amended 2017, No. 205 (Adj. Sess.), § 1.)

• Subchapter 002: Jury Trials

• § 1941. Jury challenges; peremptory and for cause

  Upon the trial of a cause in any court, each party, including the State, may peremptorily challenge six jurors and any further number for cause.

• § 1942. Repealed. 1973, No. 118, § 25, eff. Oct. 1, 1973.

• § 1943. Confinement and care of jury

  When the court has committed a cause to its consideration, the jury shall be confined until it agrees on a verdict or is discharged. While so confined, the jury shall be under the care of an officer appointed by the court and sworn for that purpose.

• § 1944. Appointment of jury foreman

  In the trial of a cause in the Superior Court by jury, the court shall appoint one of the jurors foreman at the time such cause is submitted. (Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)

• § 1945. Return of jury for further consideration

  If the judges of the Superior Court before whom a cause is tried consider that the jury has mistaken the law or evidence material to the issue or has not paid proper attention thereto, they may cause it to return to a second and third consideration of the cause. If the jury does not alter or retract its verdict, the same shall be received. (Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)

• § 1946. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

• § 1947. Treating jurors; new trial

  A verdict shall be set aside and a new trial granted on proof that a party in whose favor such verdict is rendered and during the same term of court, gives to a juror, knowing him or her to be a juror in the cause, victuals or drink or procures it to be done by way of treat either before or after such verdict.

• § 1948. View of premises by jury

  When on the trial of a cause in the Superior Court for damages to real estate, or in an action in which the title to land is concerned, it is necessary that a view be had of the premises, on motion of either party, the court may grant such view at the expense of the party making the motion. (Amended 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)

• § 1949. Repealed. 2009, No. 154 (Adj. Sess.), § 238.

• Subchapter 003: Trial of Civil Causes Before Justices

• §§ 1981-1989. Repealed. 1973, No. 249 (Adj. Sess.), § 111, eff. April 9, 1974.