# Lillicrap v. Martin

> Supreme Court of Vermont · March 1, 1991 · 156 Vt. 165

URL: https://www.frixlaw.com/law-library/cases/9707406

## Case

- **Full name:** James J. Lillicrap v. Herbert L. Martin, M.D., University Assoc. in Neurology, Inc., J. Bishop McGill, M.D., Warren L. Beeken, M.D., Surgical Associates Foundation, Et Al.
- **Court:** Supreme Court of Vermont
- **Decided:** March 1, 1991
- **Citations:** 156 Vt. 165; 591 A.2d 41; 1991 Vt. LEXIS 50
- **Precedential status:** Published
- **Opinion:** Concurrence by Morse
- **Judges:** Allen, Peck, Dooley, Mahady, Barney, Morse
- **Cited by:** 78 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9707406

## How later opinions describe it (automated extraction)

- stating that “such questions are ‘to be determined in all doubtful cases by the jury, because the public insists that its conduct be judged in part by the [person] in the street rather than by lawyers’ ” (quoting Prosser and Keeton on the Law of Torts § 37, at 237 (5th ed. 1984))
- explaining that the "clear trend among the courts of the nation" is to commence medical malpractice statutes of limitation upon discovery of "legal injury," So that the plaintiff must discover the injury and the fact that it was caused by the defendant's negligence
- holding that the statute of limitation for a medical malpractice claim under 12 V.S.A. § 521 only runs when a plaintiff should have discovered the injury, its cause, and the existence of a cause of action
- noting “clear trend” among courts holding that limitations period does not begin to run “until the plaintiff has discovered his ‘legal injury,’ such that the statute begins to run only when the plaintiff has or should have discovered both the injury and the fact that it may ha…
- holding that “the [L]egislature may impose reasonable limitations on rights of action” so long as it does not “annul vested rights”

## Opinion text

Morse, J.,
concurring. Although I agree with the result, I concur separately because the Court’s analysis is overbroad and unnecessarily reaches a constitutional issue. State v. Clarke, 145 Vt. 547, 551 , 496 A.2d 164, 167 (1985).
A simpler answer is that retroactive application of the repose provision to bar plaintiff’s action is prohibited by 1 V.S.A. § 214, .which deals with the effect of amendment or repeal of legislation on pre-existing rights and remedies. Under 1 V.S.A. § 214(b)(2), a statutory change shall not “[a]ffect any right, privilege, obligation or liability acquired, accrued or incurred prior to the effective date of the amendment or repeal.” At the time of plaintiff’s injury in 1972, he acquired a right of redress. The nature of that right — vested or inchoate — is not relevant. By the express terms of § 214(b)(2), that right cannot be affected — and certainly not eliminated — by a later change in the statute of limitations. Rather, the repose provision of 12 V.S.A. *182 § 521, enacted in 1978, is limited to prospective application; it cannot operate to affect plaintiff’s previously acquired right to bring this action. Stewart v. Darrow, 141 Vt. 248, 252 , 448 A.2d 788, 790 (1982).
Likewise, the Court’s adoption of a rule providing plaintiff with a reasonable amount of time after the amendment of the statute of limitations to bring an action is unnecessarily uncertain. The more straightforward remedy is not to apply the offensive portion of § 521 — i.e., the repose period — against the plaintiff, but to enforce the remainder of the statute, giving plaintiff two years from the date the injury is or reasonably should have been discovered to bring an action.
I am authorized to say that Justice Barney joins in this concurrence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9707406. Public record. Not legal advice.