2. Background and Summary of the Opinion
Factual and procedural background
Ford was admitted to UVMMC in October 2022 with acute coronary syndrome. After initially declining surgery, he met with Dr. Polomsky and agreed to bypass surgery. He signed a document entitled “Consent for Procedure,” authorizing Dr. Polomsky to perform three handwritten items: “coronary bypass graft surgery, endoscopic vein harvest, left atrial appendage clip.” The remainder of the form was boilerplate and referred to “the procedure” in the singular.
During surgery, a left atrial appendage clip was placed on Ford’s heart. In April 2025, Ford brought a medical-battery claim, alleging that the device was unauthorized. He maintained that the form’s repeated use of the singular “procedure” indicated authorization for only one procedure, and that Dr. Polomsky had not discussed the clip with him. He also alleged inadequate postoperative follow-up. A separate breach-of-fiduciary-duty count was voluntarily dismissed.
The civil division dismissed the battery claim under Vermont Rule of Civil Procedure 12(b)(6). It concluded that the signed form expressly authorized placement of the clip and that its singular boilerplate language did not negate the three handwritten authorizations.
The majority’s decision
Justice Waples’s majority opinion affirmed. Its principal conclusions were:
- A court considering dismissal may examine documents incorporated into or relied upon in the complaint.
- The signed form expressly listed the challenged clip procedure; the singular word “procedure” did not reasonably erase that authorization.
- Ford did not allege a substantial difference between the listed clip procedure and the clip procedure actually performed.
- A patient’s asserted lack of understanding arising from inadequate disclosure ordinarily concerns informed consent, not the absence of consent necessary for battery.
- Allowing inadequate-disclosure allegations to proceed as battery would improperly bypass the Legislature’s requirements for medical-malpractice actions.
The Court did not decide whether Ford could establish a viable malpractice claim. Nor did it determine whether the alleged postoperative deficiencies constituted negligence.
The two dissents
Chief Justice Reiber considered Ford’s interpretation of the form sufficiently reasonable to survive Vermont’s minimal pleading threshold. Justice Drescher focused instead on whether the phrase “left atrial appendage clip,” without an explanation of the action to be performed, adequately demonstrated consent as a matter of law. Both would have reversed the dismissal and allowed further factual development.
3. Analysis
A. Precedents Cited
The opinion draws on three principal bodies of authority: the substantive distinction between battery and informed-consent malpractice, Vermont’s pleading rules, and the requirements governing statutory malpractice actions and appellate preservation. The dissents invoke additional authorities emphasizing access to factual development.
Medical battery, consent, and disclosure
- Christman v. Davis, 2005 VT 119
-
This is the majority’s central precedent. A patient authorized a gum-tissue graft, but the periodontist performed a less invasive flap procedure. The Court held that the authorized conduct encompassed the procedure performed, defeating battery, although inadequate discussion could potentially support an informed-consent claim.
Ford applies the same distinction: the relevant inquiry is whether the provider performed unauthorized or substantially different conduct, not whether the patient received enough information to understand every aspect of authorized treatment. The majority also explains that Christman’s reasoning is not confined to less invasive procedures. Substantial similarity is the governing principle.
The dissents emphasize Christman’s procedural context. That case was decided on a developed summary-judgment record, and Justice Drescher reads it as cautioning against resolving disputed questions about the scope of consent prematurely.
- Cobbs v. Grant, 502 P.2d 1 (Cal. 1972)
-
Christman had quoted this California decision’s description of battery as involving a “deliberate intent to deviate from the consent given.” Ford clarifies that this language does not impose a separate requirement that the physician intend to violate the patient’s authorization. The relevant intent is intent to perform the challenged conduct.
- Wilson v. Smith, 144 Vt. 358, 477 A.2d 964 (1984)
-
Wilson supports the intent clarification. There, the evidence did not establish battery because the contact was unintentional. By contrast, Dr. Polomsky intentionally performed the clip procedure. His intent to act was therefore established; authorization, rather than accidental contact, was the disputed element.
- Small v. Gifford Mem'l Hosp., 133 Vt. 552, 349 A.2d 703 (1975)
-
Small explains that informed consent requires disclosure of information material to the patient’s treatment decision. The majority uses it to show that inadequate disclosure is not limited to risks and alternatives: it may include an insufficient explanation of the treatment’s general nature. Ford’s alleged inability to understand the clip procedure therefore could fall within informed-consent malpractice.
- O'Brien v. Synnott, 2013 VT 33
-
O’Brien permitted a battery claim where a nurse, presenting herself as a medical provider, drew blood for a nonmedical law-enforcement purpose. General consent to medical treatment did not authorize conduct fundamentally different in purpose.
The majority contrasts that substantive mismatch with Ford’s authorization of the very clip procedure performed. Justice Drescher also relies on O’Brien’s refusal to draw unfavorable inferences against a nonmoving patient and its discussion of apparent consent, arguing that the meaning and scope of Ford’s authorization required factual development.
- Rousseau v. Coates, 488 F. Supp. 3d 163 (D. Vt. 2020)
-
This federal district court decision illustrates substantial variance. The patient consented to artificial insemination using genetic material from a medical student resembling her husband, but the physician allegedly used his own genetic material. A jury could find that the performed procedure substantially differed from the authorized one. The example reinforces that the consent inquiry is substantive, not merely a comparison of procedure labels.
- Kohoutek v. Hafner, 383 N.W.2d 295 (Minn. 1986)
-
Kohoutek directly supports the majority’s rejection of the proposition that inadequately informed consent is necessarily no consent. Treating every disclosure deficiency as battery would disregard the practical distinction between unauthorized treatment and negligent nondisclosure.
Pleading standards and incorporated documents
- Sutton v. Purzycki, 2022 VT 56
-
Sutton supplies two important rules: documents relied upon in a complaint merge into the pleadings, and courts must accept pleaded facts and draw reasonable inferences for the plaintiff. The majority relies on both rules, but distinguishes reasonable inferences from speculation. Justice Drescher agrees with the standard while disputing its application to the consent form.
- Kaplan v. Morgan Stanley & Co., 2009 VT 78
-
Kaplan permitted consideration of an entire town plan specifically referenced in a complaint, although the full document was not attached. It supports examining Ford’s complete consent form rather than only his characterization of it.
- Birchwood Land Co. v. Krizan, 2015 VT 37
-
Birchwood establishes de novo review and Vermont’s demanding standard for dismissal: no facts or circumstances may exist that would entitle the plaintiff to relief. Both the majority and dissents accept this framework. Their disagreement concerns whether the incorporated form conclusively defeats the claim or permits a favorable inference about the limits of consent.
- Montague v. Hundred Acre Homestead, LLC, 2019 VT 16
-
The majority invokes Montague for the proposition that even liberal pleading does not save a legally noncognizable claim. Chief Justice Reiber emphasizes another aspect of the same precedent: courts should be particularly cautious about dismissing novel claims before evidence develops their legal and factual contours.
- Colby v. Umbrella, Inc., 2008 VT 20
-
Colby serves competing emphases. The majority relies on its balance between permitting underdeveloped but valid claims and excluding baseless or legally insufficient ones. Chief Justice Reiber stresses its statements that dismissal is disfavored and that Vermont rejected heightened federal pleading standards.
- Aranoff v. Bryan, 153 Vt. 59, 569 A.2d 466 (1989)
-
Aranoff supports declining to accept unsupported conclusory allegations. Thus, labeling the device “unauthorized” did not require the majority to disregard the specific authorization contained in the incorporated form.
- Off. of Auditor of Accts. v. Off. of Att'y Gen., 2025 VT 36
-
This recent precedent states that a written instrument controls over contradictory allegations in the complaint to which it is attached. The majority applies that principle to the form’s express listing of the clip. The dissents’ objection is effectively that the document was not sufficiently clear to establish the contradiction as a matter of law.
Statutory malpractice safeguards and appellate procedure
- McClellan v. Haddock, 2017 VT 13
-
McClellan explains the legislative purpose of the certificate-of-merit requirement: reducing the burden of meritless malpractice litigation. It also cautions against applying liberal procedural rules in a way that undermines a specific legislative mandate. The majority uses this reasoning to prevent relabeling negligent nondisclosure as battery.
- In re Hopkins Certificate of Compliance, 2020 VT 47
-
This decision recognizes some procedural leeway for self-represented litigants. Ford was self-represented until oral argument, but the majority holds that such accommodation cannot eliminate substantive distinctions or statutory requirements.
- Progressive Ins. Co. v. Brown ex rel. Brown, 2008 VT 103
-
Progressive supplies the rule against considering appellate arguments not preserved below. It supports the majority’s refusal to construct a substantial-variance theory that Ford had not presented.
- In re Entergy Nuclear Vt. Yankee, LLC, 2007 VT 103
-
This authority requires issues to be presented with sufficient specificity and clarity to give the original forum a fair opportunity to decide them. General assertions about misunderstanding or inadequate wording did not, in the majority’s view, preserve a claim that the authorized and performed procedures substantially differed.
- TD Banknorth, N.A. v. Dep't of Taxes, 2008 VT 120
-
TD Banknorth bars arguments first raised at oral argument. The majority invokes it when discussing counsel’s suggestion that reasonable minds could differ about whether the form accurately defined the procedure. Even if that suggestion advanced a new substantial-variance theory, it came too late.
Additional authorities supporting the dissents
- Bock v. Gold, 2008 VT 81
-
Chief Justice Reiber relies on Bock’s description of the pleading threshold as “exceedingly low.” His position is that facts consistent with Ford’s complaint might establish lack of consent, so dismissal was premature.
- Island Indus., LLC v. Town of Grand Isle, 2021 VT 49
-
Both dissents invoke this explicit reaffirmation of Vermont’s rejection of heightened federal pleading standards. A bare-bones complaint providing notice can suffice even where the claim appears unlikely to succeed.
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)
-
Chief Justice Reiber cites Twombly as the federal departure from the traditional “no set of facts” formulation. Justice Drescher cites the same decision as Bell Atlantic Corp. v. Twombly. Neither dissent treats federal plausibility pleading as controlling Vermont law; both use it to identify the stricter approach they believe the majority risks applying in practice.
- Ashcroft v. Iqbal, 556 U.S. 662 (2009)
-
Justice Drescher invokes Iqbal’s rejection of mere labels and formulaic allegations under federal pleading rules. Her point is that Ford’s claim might fail federal plausibility review, but Vermont has not adopted that requirement.
- Huntington Ingalls Indus., Inc. v. Ace Am. Ins. Co., 2022 VT 45, and Ass'n of Haystack Prop. Owners, Inc. v. Sprague, 145 Vt. 443, 494 A.2d 122 (1985)
-
Chief Justice Reiber uses Huntington Ingalls and its quotation from Ass’n of Haystack to argue that a bare-bones claim’s legal theory should ordinarily be explored against evidence developed in litigation. These authorities support his objection to resolving the disputed authorization question at the outset.
- Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44, 582 A.2d 123 (1990)
-
Chief Justice Reiber cites the principle that doubtful language in a written instrument is construed against its drafter. If the consent form was ambiguous, that ambiguity should not, in his view, have been resolved in favor of the medical defendants who supplied it.
B. Legal Reasoning
1. The controlling comparison was between the listed procedure and the performed procedure
The majority did not ask merely whether clipping the left atrial appendage differed from bypass surgery. Because the form listed both, the decisive comparison was between the clip procedure authorized in writing and the clip procedure performed.
Ford’s assertion that vein harvesting was integral to bypass surgery while the clip was an entirely different procedure did not eliminate the separate clip authorization. The majority also observed that Ford accepted authorization for both bypass surgery and vein harvesting, weakening his argument that the singular heading necessarily limited the document to one procedure.
Most importantly, Ford did not claim that the listed clip procedure substantially differed from the performed operation. His appellate reply expressly acknowledged that Dr. Polomsky performed the same procedure as the one consented to.
2. Authorization and informed authorization remain distinct legal inquiries
The majority treats express authorization as separate from the adequacy of the information preceding it. A patient may authorize particular conduct while receiving an insufficient explanation of its nature, risks, benefits, or alternatives.
Ford’s assertion that he did not understand that the phrase “left atrial appendage clip” meant placement of a device on his heart challenged the adequacy of disclosure. Under the majority’s analysis, that subjective misunderstanding did not establish an objective difference between the conduct listed and the conduct performed.
This does not establish that Dr. Polomsky actually provided adequate information. The Court classified the alleged wrong; it did not adjudicate whether the disclosures satisfied the professional standard.
3. The distinction preserves the Legislature’s malpractice framework
The Court links the substantive distinction to Vermont’s statutory scheme. Section 1908 of Title 12 governs professional-negligence proof, § 1909 addresses informed-consent claims, and § 1042 establishes certificate-of-merit requirements. The opinion also emphasizes expert-proof requirements associated with malpractice litigation.
If deficient disclosure automatically eliminated all consent, patients could plead battery to avoid requirements designed for malpractice claims. The majority rejects that result while reaffirming that genuine medical-battery claims remain available at common law.
4. Battery requires intentional conduct, not an intentional violation of permission
The opinion expressly clarifies an important element of battery: the provider must intend the challenged conduct, but need not intend to exceed the patient’s consent. Here, Dr. Polomsky intended to perform the clip procedure, so the intent element was not the reason for dismissal. The missing element was unauthorized conduct.
5. The holding has important limits
-
Only express consent was decided. The Court did not resolve apparent consent, presumed consent, or the emergency exception.
-
Known substantial mistake or fraud remains a separate possibility. Drawing on the Restatement and Dobbs’s tort treatise, the majority acknowledges that consent may be ineffective where the provider knows of a substantial mistake or causes it through affirmative misrepresentation or fraud. Ford did not allege such circumstances, and the Court did not decide that theory. Vermont Rule 9(b) requires particularity when pleading fraud or mistake.
-
Actual substantial variance remains actionable. The decision does not protect a provider who performs substantially different treatment merely because some consent form was signed.
-
No independent institutional-liability rule was announced. Although dismissal was affirmed as to both defendants, the opinion does not separately analyze UVMMC’s liability.
6. The procedural disagreement is narrower than adoption of federal plausibility pleading
The majority expressly retains Vermont’s liberal standard. It concludes that the incorporated document and Ford’s own position make his battery theory legally insufficient. The dissents believe that conclusion resolves contested inferences against him.
Chief Justice Reiber identifies possible ambiguity in the singular wording and frames early dismissal as an access-to-justice concern, invoking Chapter I, Article 4 of the Vermont Constitution. He does not dispute the basic distinction between battery and malpractice.
Justice Drescher identifies a different uncertainty: whether a technical noun phrase adequately communicates what conduct the patient permits. She regards the signed form as potentially compelling evidence, but not conclusive evidence at the pleading stage. Her dissent therefore questions the majority’s assumption that written terminology alone establishes the scope of authorization.
C. Impact on Future Cases
Claim classification will become more consequential. Patients alleging inadequate explanation of an expressly listed procedure must distinguish that complaint from a claim that the procedure was never authorized. The legal substance of the allegations, rather than the chosen label, will control.
Incorporated consent forms may support early dismissal. Defendants can rely on procedure-specific written authorization where the complaint identifies no substantial difference between authorized and performed conduct. Nevertheless, the holding is not a universal rule that every signed form defeats battery.
Careful preservation matters. A plaintiff advancing substantial variance should clearly identify the authorized conduct, the actual conduct, and the alleged difference. The majority will not construct that theory from speculative inferences or entertain it for the first time at oral argument.
Future disputes may test the adequacy of the written description itself. The dissents highlight unresolved practical questions about technical terminology, ambiguous scope, and the point at which a description is too unclear to establish authorization. Claims involving materially different treatment, known mistake, or affirmative deception may require different analysis.
Clearer consent documentation remains advisable. Consistent singular or plural wording and understandable descriptions of each intervention could reduce disputes. That practical lesson should not be mistaken for a new legal holding requiring any particular form language.