Attorney Gregory M. Dennis gave an excellent presentation on Veterinary Malpractice at the 2010 National Conference on Equine Law. Greg’s topic could not have been more timely or relevant. We receive multiple calls per week from horse owners wishing to sue their veterinarian for injury to or the death of their horse.
My firm does not sue veterinarians due to conflicts purposes. Although we can’t take these cases, we often consult with horse owners who are considering a veterinary malpractice case. If you are considering a lawsuit against a veterinarian, here are some things you should consider:
We usually tell people that most (but not all) veterinary malpractice cases are difficult for plaintiffs for two main reasons:
1) It is hard to find a veterinarian who will testify against another veterinarian; and
2) Horses are personal property (chattel) under the law. As such, a plaintiff usually cannot recover pain & suffering damages (for the horse or the owner) or damages based on the sentimental value of the horse.
The burden of proof in a veterinary malpractice action is always on the plaintiff. Fackler v. Genetzky, 595 N.W.2d 884, 889-90 (1990) appeal after remand 638 N.W.2d 521 (2002).
The plaintiff must prove:
1) A veterinarian’s acts or omissions failed to meet the standard of care;
2) Acts or omissions were negligently performed;
3) Negligently performed acts or injuries caused the animal’s injury or death; and
4) As a result, the plaintiff was damaged.
See Eades, Jury Instructions on Medical Issues, VETERINARIANS, 7-20 (6th ed. 2004).
To establish element number one (failure to meet the standard of care) the plaintiff must get another veterinarian to testify against the veterinarian being sued for malpractice. Downing v. Gully, 915 S.W.2d 181 (Tex. App.—Fort Worth 1996, writ denied). This is where a lot of people run into problems. They have trouble finding a vet to testify as to what the standard of care was, and that their veterinarian breached that standard of care.
Note: a veterinary negligence case is different from a veterinary malpractice case. If you are suing for ordinary negligence only, a veterinarian might not have to be called to testify.
Example: A healthy horse comes in for his annual vaccinations. A veterinarian leaves a door open and allows a horse to get into the feed room. The horse eats a whole bag of feed and then colics and dies as a result.
Another tough element in many cases is element number 3 (causation). This is especially tough in cases where the horse died. If a horse dies in the care of the vet and the plaintiff wishes to prevail on a malpractice suit, the plaintiff needs to prove that the horse would not have died anyway (but for the vet’s malpractice).
Damages typically awarded in vet malpractice cases in Texas and most states are 1) loss of animal’s market value or the cost of replacement, and 2) veterinary expenses. Because attorney fees are generally unrecoverable on a vet malpractice case, the case might cost more to bring than the horse's fair market value.
That said, states such as Alaska, Florida, Hawaii, Idaho, Kentucky, New York and New Jersey to some extent, as well as the District of Columbia have expressed a willingness to accept claims requesting damages beyond market value.
This post is not meant to discourage people from bringing "bad" vets to justice. It is meant to give potential plaintiffs an idea of the legal framework surrounding veterinary malpractice cases in general.
Take aways: 1) Use good vets that you know and trust; if you don't know a good vet, ask other horse owners in the area for a referral; 2) if your horse is valuable, get major medical and mortality insurance on the horse; and 3) if you suspect malpractice, your first call should be another veterinarian so you can get an idea of whether or not the standard of care was breached. That will be your ultimate issue.
If you are a veterinarian who has testified for a plaintiff in the past or would be willing to testify for a plaintiff, please contact my office as soon as you can so I can refer you to horse owners and other lawyers who may need your services. My number is 817-878-3541. Thank you!
**A special thank you to Greg Dennis, whose presentation materials provided valuable references for this post.
Photo credit: Courthouselover (Flikr)