Posted on July 25, 2009 by Alison Rowe

Lien for Texas Large Animal Vets to Take Effect September 1, 2009

Beginning September 1, 2009, all large animal veterinarians in the state of Texas will have a lien on treated animals to secure payment of vet bills. This lien will be effective both before and after the animal is released to the owner.
 
Prior to the effective date of this legislation, veterinarians have no statutory lien on treated animals to secure veterinary services other than board. See "Liens for Veterinarians and Farriers in Texas" (February 18, 2008)

 

As of January 2009, twenty-eight other states provide veterinarians with a statutory lien. Texas's lien is unique in that it only applies to large animals (livestock) and is not purely possessory in nature (i.e. allows repossession after the animal is taken by its owner).

*The passage of this lien doesn't mean the vet "has" to take the treated animal as payment...it's just there as an alternative collections measure.*

The final bill (S.B. 1806, proposed by this firm and carried by Senator Judith Zaffirini) will be codified in Section 70.010 in the Texas Property Code.
 
This lien may give veterinarians some leverage in getting paid for their services, even if the lien is not ultimately enforced.
 

FACTS ABOUT THE NEW STATUTE:

1) The lien will only apply to amounts that become due to vets after September 1, 2009.

2) When the vet maintains possession of the animal, the vet's lien will have priority over all other liens.

3) Once the vet relinquishes possession of the animal, the vet's lien should be filed of record in the county where the services were rendered and with the Secretary of State.  The vet's lien, post possession, takes priority in the order of filing the notice, per Article 9 of the Uniform Commercial Code.

Tags: , , ,
Posted on May 13, 2008 by Alison Rowe

The Statute of Limitations in Veterinary Malpractice Actions

Veterinarians may have several legal defenses to claims of malpractice. One of the most important procedural defenses is that of the statute of limitations. A statute of limitations is a state law that puts a limit on the amount of time a plaintiff has to file a lawsuit, usually from the time the injury occurred or when he or she discovered the injury. If the statute of limitations runs out before the lawsuit is filed, then no legal action may be taken.  Any attempt to do so will result in the judge dismissing the suit without hearing the merits of the claim. In order to "toll" the statute of limitations (i.e. make the limitations period stop running), the plaintiff must actually file suit.  Demand letters sent to the vet or the verbal notification of a future claim do not act to toll the statute of limitations.

With veterinary malpractice cases for injury to or death of a horse, the applicable statute of limitations may be based on claims for injury to personal property in that state, as domestic animals are considered personal property of the owner.  Those cases usually have a statute of limitations of four (4) years.

For states that include veterinarians under the list of professions covered by malpractice statutes, they may be based upon statutes that set time limits for malpractice. These statues of limitations are usually shorter, typically two (2) years.

For instance, Georgia law provides a two (2) year statute of limitations for medical malpractice actions.  However, veterinarians are not included in the definition of malpractice actions, because those involve injuries to people only.  Georgia has a four (4) year statute of limitations for injuries to personal property, which would arguably apply to a veterinary malpractice claim brought in Georgia.

Importantly, the manner in which a plaintiff pleads his or her claim (i.e., whether he or she claims common negligence or malpractice) may dictate the statute of limitations.  If a negligence claim is not barred by limitations and a malpractice action is barred, a court would allow the negligence action to go forward and dismiss the malpractice action.

For more information on vet malpractice actions and the applicable statute of limitations, see Veterinarian Malpractice by Davis S. Favre.

Tags: , , ,
Posted on May 7, 2008 by Alison Rowe

Potential Law Suit Over Eight Belles?

Several people have asked me if I thought there would be  litigation over the death of Eight Belles after her second place finish at the 2008 Kentucky Derby on May 3.  Although animal rights activists staged a protest at the office of the Kentucky Horse Racing Authority after the filly's death, I don't think there will be any litigation.  

The filly's death did not seem to be caused by the negligence or wrongdoing of any person or entity.

What did cause Eight Belles to break both front ankles?  According to the Wall Street Journal, Eight Belles' breakdown may have arisen from a variety of factors such as genetics, track surface, training methods, or medications.  Interestingly, Eight Belles and 2006 Kentucky Derby winner Barbaro were both descendants of Northern Dancer, a 1950s Thoroughbred whose racing career was cut short by leg injuries.

What is being done in the horse racing industry to prevent future breakdowns?  The Welfare and Safety of the Racehorse Summit, which first convened in 2006 after Barbaro's breakdown in the Preakness, met again in Lexington March 17-18, 2008.  The Summit promulgated its recommendations to improve racehorse welfare, and those recommendations addressed the following issues:

  1. Track Surfaces--including research and development of synthetic (Polytrack) surfaces
  2. Catastrophic injuries
  3. Racing Medication & Drug Testing Laboratories
  4. Education--focusing on training methods
  5. Regulation--to establish uniform regulation of medication and integrity issues
  6. Solutions for unwanted Thoroughbreds
  7. Promote genetic diversity of the Thoroughbred

If the Summit's recommendations are implemented, huge positive changes in the Thoroughbred racing industry could be realized.  However, according to Dan Metzger, the President of the Thoroughbred Owners and Breeders Association, "miracles will not happen overnight."

 

Tags: , , , , , , ,
Posted on May 6, 2008 by Alison Rowe

Does a Veterinarian Have to Treat Your Horse in an Emergency?

Someone recently asked me if he had a case against an equine surgery clinic that told his local vet during a telephone conversation to not send them the mare because they did not have room for her at the clinic.  The mare died 4 hours later of colic complications, and the owner stated that she would have lived if the vet clinic had admitted her and performed colic surgery.  The mare in that case was not a current patient of the clinic.  The owner would not have a valid claim against the clinic in that case.

The decision of whether to accept an animal as a patient is at the sole discretion of a veterinarian.  This rule is set forth in Article II.E. of the the Principles of Veterinary Medical Ethics of the American Veterinary Medical Association, which applies to all veterinarians in the United States.  The Texas Rules of Professional Conduct for veterinarians codifies that rule for vets practicing in Texas.  Therefore, even in emergency situations, vets do not have to take your horse if, for example, you cannot pay for the treatment or they simply do not have time to treat your horse.

For a vet to be potentially liable to a horse owner for injury or death of their horse, a veterinarian-client-patient relationship (VCPR) must first exist.  The VCPR is established when all of the following conditions are met:

1) the vet has assumed responsibility for making clinical judgments regarding the health of the horse and the need for medical treatment, and the owner has agreed to follow the vet's instructions;
2) the vet has sufficient knowledge of the horse to initiate at least a preliminary diagnosis of the medical condition of the horse. This means that the veterinarian has recently seen and is personally acquainted with the keeping and care of the horse by virtue of an examination of the horse, or by medically appropriate and timely visits to the premises where the horse is kept; and
3) The vet is readily available, or has arranged for emergency coverage, for follow-up evaluation in the event of adverse reactions or the failure of the treatment regimen.
That said, Article II.F. of the Principles of Veterinary Medical Ethics does say that, in emergencies, vets have an ethical responsibility to provide essential services for animals when necessary to save life or relive suffering, subsequent to client agreement. This rule allows vets to arrange with colleagues to provide emergency services when they cannot be available to provide services. If a vet believes that they don't have the experience or equipment to manage and treat certain emergencies in the best manner, the vet may offer to expedite referral to vets qualified to provide the emergency services.
This ethical rule does not rise to a "cause of action" against a vet clinic if you are not a current client and they cannot take your horse in an emergency. Further, the rule's inclusion of the phrase "subsequent to client agreement" infers that vets may only have a duty to provide or help obtain emergency services for their clients (i.e. only after a VCPR is established).
Horse owners should keep handy the contact information of the closest emergency vets or clinics in their area and use them in a true emergency. If an emergency vet is not available, ask the veterinarian who normally treats your horse to give you a protocol of what to do in an emergency situation, and keep those instructions someplace you will be able to find them quickly in an emergency.
Tags: , , , ,
Posted on February 19, 2008 by Alison Rowe

What Happens if Lien Foreclosure Sale Proceeds Not Enough?

In many cases, the proceeds from a stock breeder's or stable keeper's lien foreclosure sale will not be enough to satisfy your debt.  In those cases, you may sue the owner for the deficiency, if any.

The law suit may not be worth it, however, as you could end up spending more on legal fees than you are owed. For these reasons, I recommend that everyone who takes a horse to be boarded or bred obtain a written contract providing an agreement for the customer to pay for your services as well as the services of third parties for their horse's care while in your possession. 

Ideally, the agreement would include either 1) credit card information from the customer and an agreement that it will be charged for your services; or 2) the customer’s agreement that you may sell their horse at a public or private sale without notice to them if their account is in arrears more than 30 days.

This is especially important for farriers and veterinarians, as Texas law does not provide them any statutory lien to secure payment for their services.

Tags: , , , , , , , ,
Posted on February 18, 2008 by Alison Rowe

Liens for Veterinarians and Farriers in Texas

Unlike many other states, Texas does not provide veterinarians or farriers with a lien on a horse to secure payment for professional services rendered. The stableman’s lien in Texas does provide a farrier or vet who had a horse in his or her care a lien on the animal for costs of boarding the animal. Also, both vets and farriers can obtain contracts with their customers providing for a contractual lien on the animal to secure payment for work done.

Tags: , , , ,