The Vermont Supreme Court has dealt a blow to a lawsuit brought by the estate of a man who died by suicide at the Northern State Correctional Facility in Newport.
Joshua Bittner’s family has claimed his death was the result of a “failure to communicate” among those responsible for his care, including the state Department of Corrections and its former contracted health care provider, Centurion Managed Care.
The high court, in a decision issued Friday, ruled that a medical expert was needed to support the allegations in the lawsuit brought by Bittner’s estate before certain claims could move forward.
The lawsuit included one count of medical negligence, which generally requires a certificate from a medical expert providing a basis for the claim.
“Because this is not a ‘rare instance’ in which expert testimony is unnecessary and because no [certificate of merit] was filed simultaneously with the complaint, plaintiff’s medical malpractice claim must be dismissed,” wrote Justice Harold Eaton, who authored the opinion.
The ruling overturns a lower court decision by Judge Samuel Hoar allowing those claims to proceed without such expert testimony.
David Sleigh, the Bittner estate’s attorney, disputed the necessity of such a certificate. He argued that the alleged failure to transmit health information about his client from one prison to another was primarily a “bureaucratic” failure.
The lawsuit names the Department of Corrections and Centurion Managed Care, as well as several individual employees from each entity, as defendants.
Sleigh said Friday afternoon he was “disappointed” by the decision but would press forward on the lawsuit’s other counts, including allegations that the defendants violated Bittner’s civil rights, specifically protections against cruel and unusual punishment.
The remaining counts are expected to be litigated in Franklin County Superior civil court.
Pamela Eaton, an attorney with the law firm Paul Frank + Collins, which is representing the defendants, could not be reached Friday for comment.
Rachel Feldman, a corrections department spokesperson, declined comment Friday due to the pending nature of the litigation.
The case was brought by Renee Bittner, the administrator of Joshua Bittner’s estate. It has been working its way through the legal system for more than two years.
Joshua Bittner, 26, was found hanging in a cell in the Northern State Correctional Facility in Newport on the night of March 2, 2017, according to court records. Bittner died the next day at the University of Vermont Medical Center in Burlington, filings stated.
Prior to his time at the Newport prison, Bittner was held at the Northwest State Correctional Facility in St. Albans.
“When he was taken into custody, he had a long history with [the Department of Corrections]. They had extensive knowledge of his mental health problems,” Sleigh said in an interview prior to oral arguments before the Vermont Supreme Court earlier this year.
Sleigh said it’s not clear why prison officials transferred him from one prison to another and that “somewhere in the transfer, the folks at Northwest did not tell the folks at Northern about Bittner’s mental problems, his prior suicidal ideations and various other things.”
Bittner’s mental health issues went untreated and he “deteriorated and killed himself,” Sleigh said.
Eaton’s opinion was signed by two other justices, Karen Carroll and William Cohen.
Justice Beth Robinson — who has been nominated for a position on a key federal appellate court — wrote a separate opinion co-signed by Chief Justice Paul Reiber.
Robinson agreed with Eaton in precluding Bittner’s estate from pursuing claims against the individual employees. But she diverged on the question of the medical malpractice claim against the corrections department and Centurion, finding that the allegations meet the threshold for a “rare instance” in which expert testimony is not required.
Centurion, the health care provider, has come under fire for its care of incarcerated people, most notably in the December 2019 death of 60-year-old Kenneth Johnson in the Newport prison.
Johnson, who was Black, died of an undiagnosed cancerous tumor in his throat, according to investigations into his death. Investigators said his pleas that he couldn’t breathe were allegedly ignored by corrections and medical staff. Officials were unable to determine whether race played a role in his treatment.
Vermont dropped Centurion as its health care provider last year. The corrections department now contracts with VitalCore Health Strategies, a Kansas-based company, for health care services.
