Preston v. Copley Health

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 25-CV-01118
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org
Mikayla Preston, et al v. Copley Health Systems, Inc., et al

ENTRY REGARDING MOTION
Title: Motion to Dismiss Counts V and VI of Complaint (Motion: 3)
Filer: Curtis L. S. Carpenter
Filed Date: November 05, 2025

The motion is DENIED.
Decision on Copley’s Motion to Dismiss
Plaintiff Ms. Mikayla Preston, on behalf of herself and her son, identified as O.W.,
asserts that she was admitted to Copley Hospital for an elective induction of labor, during which
hospital personnel intravenously administered the wrong drug due to an error by the hospital
pharmacy. Non-fatal injuries are alleged to have resulted to both her and O.W. Among the
several claims asserted in this case are O.W.’s loss of parental consortium and Ms. Preston’s loss
of filial (child) consortium.

Copley has filed a Rule 12(b)(6) motion to dismiss both consortium claims. It argues that
the parental consortium claim falls outside the scope of Hay v. Medical Center Hosp. of
Vermont, 145 Vt. 533 (1985), which recognized such a claim in the context of a parent in a
permanently comatose state, and the child consortium claim is simply not recognized in
Vermont.

Procedural Standard

A motion to dismiss for failure to state a claim faces a high bar. The Vermont Supreme
Court has described the familiar standard for Rule 12(b)(6) motions to dismiss for failure to state
a claim as follows:

“A motion to dismiss . . . is not favored and rarely granted.” This is especially
true “when the asserted theory of liability is novel or extreme,” as such cases
“should be explored in the light of facts as developed by the evidence, and,

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generally, not dismissed before trial because of the mere novelty of the
allegations.” In reviewing a motion to dismiss, we consider whether, taking all of
the nonmoving party’s factual allegations as true, “‘it appears beyond doubt’ that
there exist no facts or circumstances that would entitle the plaintiff to relief.” We
treat all reasonable inferences from the complaint as true, and we assume that the
movant’s contravening assertions are false.

Alger v. Dep’t of Labor & Indus., 2006 VT 115, ¶ 12, 181 Vt. 309 (citations omitted); see also
5B A. Benjamin Spencer, et al., Fed. Prac. & Proc. Civ. § 1357 (4th ed.) (“Ultimately, the burden
is on the moving party to prove that no legally cognizable claim for relief exists.”). The
Vermont Supreme Court has made clear that “[t]he complaint is a bare bones statement that
merely provides the defendant with notice of the claims against it.” Colby v. Umbrella, Inc.,
2008 VT 20, ¶ 13, 184 Vt. 1. “[T]he threshold a plaintiff must cross in order to meet our notice-
pleading standard is ‘exceedingly low.”’ Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575. The
purpose of the complaint “is to initiate the cause of action, not prove the merits of the plaintiff’s
case.” Colby, 2008 Vt. 20, ¶ 13. The mere absence of an allegation or an element is not a proper
basis for dismissal. Id.; see also 5A Wright & Miller, Federal Practice and Procedure: Civil 2d §
1356, at 296 (“The Rule 12(b)(6) motion . . . is not designed to correct inartistic pleadings.”).

Analysis

Consortium refers to the “benefits that one person . . . is entitled to receive from another,
including companionship, cooperation, affection, aid, and (between spouses) sexual relations.”
Black’s Law Dictionary 304 (7th ed. 1999). A claim for loss of consortium is derivative in the
sense that it depends “upon the success of the underlying tort claim, and arises on account of the
injured [person’s] physical injury.” Derosia v. Book Press, Inc., 148 Vt. 217, 220 (1987). The
law limits who in relation to the injured person may bring such a claim. Either legally married
spouse may bring such a claim. See 12 V.S.A. § 5431; Harris v. Sherman, 167 Vt. 613, 615
(1998); Whitney v. Fisher, 138 Vt. 468, 471–72 (1980). In Hay v. Medical Center Hosp. of
Vermont, 145 Vt. 533 (1985), the Vermont Supreme Court extended the claim to the
circumstance of a child claiming the loss of a parent’s consortium. The Court has never
extended the similar claim to the circumstance of a parent claiming the loss of a child’s
consortium, but it has never expressly denied it in any decisions analyzing the claim of
consortium.

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1. Child’s loss of parental consortium

In Hay, the tort-victim’s injury resulted in a permanently comatose state. Copley argues
that Hay is limited to such a circumstance, or at least one in which the parent is in some kind of
state functionally equivalent to death. Ms. Preston appears to understand Hay similarly. She
argues that dismissal would be premature, however, because the evidence may reveal that she
does suffer the sort of lack of capacity that Hay requires, and otherwise the court should more
broadly construe the claim to not require a lack of capacity equivalent to death.

The Hay Court engaged in a detailed analysis of the propriety of evolving the common
law to permit a child to claim a lack of parental consortium. Nothing in the substance of that
analysis implies that it was adopting a limitation on such claims requiring the functional death of
the parent, which limit would have no history or basis under an ordinary spousal consortium
claim and would ensure that the claim could only be asserted in the rarest of circumstances.
Rather, the analysis appears to impose no such limitation whatsoever.

No doubt, the Court concludes by stating: “For the reasons cited herein, we recognize that
a minor child has the right to sue for damages for the loss of parental consortium when the parent
has been rendered permanently comatose.” Hay, 145 Vt. at 545. But in light of the analysis that
precedes it, the reference to the parent’s permanently comatose condition here must be
understood to simply refer to a fact of the case rather than as a limitation on the claim adopted.

In fact, Justice Larrow, in dissent, recognized exactly that: “The majority opinion
discusses loss of parental consortium at length. Although its specific holding relates to the
permanent ‘brain death’ of the mother, its general discussion makes it clear that this is not a sine
qua non for liability, and that the Court is adopting a cause of action for a minor’s loss of
parental consortium, without limitation.” Id. at 546 (Larrow, J., dissenting). The court agrees.

There is no basis to dismiss O.W.’s loss of parental consortium claim at this point in the
litigation as the facts underlying such a dismissal are in dispute and go beyond the function of a
motion to dismiss.

2. Parent’s loss of child’s consortium

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The Vermont Supreme Court has never similarly expanded the common law to extend to
a parent’s loss of a child’s consortium. Copley argues that, since Hay, forty years have gone by
without the Court having done so, and that should be sufficient for the court to conclude that the
common law should not so evolve now. However, the Court draws no such inference from mere
silence in the decisions of the Supreme Court because there is no indication that the issue has
been put to it in those forty years. Otherwise, there is no statute or binding case law prohibiting
any such further evolution of the common law.

The undersigned examined this question in detail in Letourneau v. Claffey, No. 289-12-
19 Cacv, 2023 WL 9320693 (Vt. Super. Ct. Dec. 8, 2023) in the context of a motion for
judgment on the pleading. There, the court reviewed the history of things and relevant
authorities and concluded that extending the claim to a parent’s loss of a child consortium makes
good sense and was consistent with both evolving practice and common law recognition
concerning the loss of a child to a parent. See id. at *3 (“While Hay focuses on the child’s
perspective and the loss of a parent, nothing in its reasoning suggests that the analysis is not
equally as strong in the opposite direction. Time has proven the truth of this position.”). For that
reason, the motion for judgment on the pleadings was denied.

The court adopts the analysis of Letourneau for purposes of this case and the present
motion to dismiss. See also Restatement (Third) of Torts: Concluding Provisions § 48B TD No.
1 (broadly adopting parental loss of child consortium claim). At worst, Ms. Preston’s claim is
novel under Vermont law, and the dismissal standard counsels in favor of keeping novel claims
in the case so that they may be more reliably addressed once the evidence has developed.

For these reasons, the court declines to dismiss Ms. Preston’s consortium claim. Whether
either plaintiff in fact has experienced any loss of consortium is not presented by Copley’s
motion.

The court notes that Plaintiffs presented numerous other arguments in support of the
denial of Copley’s motion. Because the motion is denied for the reasons asserted above, the
court declines to address those other arguments.

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ORDER

For the foregoing reasons, Copley’s motion to dismiss is Denied.

Electronically signed on 1/28/2026 12:07 PM pursuant to V.R.E.F. 9(d)

Xp
__________________________________
Daniel Richardson
Superior Court Judge

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