As I’ve previously stated in this prior post, negligence and malpractice lawsuits against veterinarians are generally “tough sleddin’” for plaintiffs in Texas. Would-be plaintiffs who wish to sue their veterinarians often face major obstacles such as: 1) proving damages; 2) obtaining effective expert testimony; 3) paying litigation expenses where there is a low likelihood of recovery; and 4) finding a lawyer experienced in representing plaintiffs in veterinary malpractice suits.

Last year’s defense verdict in the lawsuit brought by Larry and Lynn Welk against Dr. Jeffrey A. Foland and Weatherford Equine Medical Center, P.C. illustrates some of these difficulties.

If Larry Welk’s name sounds familiar to you, it may be because his father was the famous bandleader Lawrence Welk, host of the long-lived Lawrence Welk Show. Larry and Lynn Welk’s Champagne Ranch, based in Malibu, California, is in fact named after the “champagne music” made famous by Larry’s father.   

The Welks’ lawsuit, filed in the 415th District Court of Parker County, Texas (Judge Graham Quisenberry, presiding), centered around the alleged stifle injuries sustained by their young stallion, Juan Bad Cat. The Welks alleged that Dr. Foland had injected the horse’s stifles and performed a surgery without first consulting with the Welks or the horse’s previous veterinarian. The horse’s prior veterinarian was the late Dr. Van E. Snow of Santa Ynez, California.  According to the Welks’ suit, they lost the opportunity to compete and syndicate Juan Bad Cat due to Dr. Foland’s alleged negligence and malpractice. The Welks sought damages of approximately $3 million against Dr. Foland and his clinic.

Dr. Foland and his clinic filed counterclaims against the Welks, seeking damages for an unpaid veterinary bill, attorneys’ fees, and court costs. 

The Welks were represented by Robert Talaska and Theodore G. Skarbowski, both based in Houston, Texas. Talaska’s firm, according to its website, specializes in human birth injuries. Skarbowski’s firm assists clients with such matters as National Firearms Act gun trusts, commercial litigation, contracts, and estate planning– per its website

Dr. Foland and his veterinary clinic were represented by Dr. Donald A. Ferrill of Brown, Pruitt, Peterson & Wambsganss, P.C. in Fort Worth, Texas. Dr. Ferrill is both a licensed veterinarian and an attorney who regularly represents veterinarians.

After a jury trial in September 2011 that lasted about 9 days, the jury returned a verdict in favor of Dr. Foland and his clinic for approximately $192,000 for an unpaid vet bill and attorneys’ fees. The jury awarded zero damages to the Welks.

I recently got the opportunity to catch up with Don Ferrill, the lawyer who represented Dr. Foland and his clinic, to talk about the evidence revealed in the case. According to Ferrill, “Dr. Snow diagnosed and had been treating the horse for what he believed was a congenital condition in its right stifle since it was approximately one year of age.  The colt was not any worse off after Dr. Foland treated him than he was before the treatment.” 

The plaintiffs’ expert witnesses, when pressed for details on cross examination, gave testimony that helped the defense, according to Ferrill. 

“The evidence showed that Dr. Foland did consult with Dr. Snow’s office prior to performing surgery on the horse, and that Dr. Snow advised Dr. Foland to do the surgery at issue,” said Ferrill. Darren Simpkins, the Welks’ horse trainer who was boarding and training Juan Bad Cat in Texas at the time, testified that he gave Dr. Foland permission to perform the stifle injections, according to Ferrill. “These injections [Vetalog and hyaluronic acid] did not numb pain in the horse’s limbs, did not contribute to lameness, and were the type that performance horses typically receive for routine maintenance,” said Ferrill.   The Welks also had Dr. Foland perform a colic surgery on one of their other horses after the lawsuit was filed, according to Ferrill.

“Prior to the depositions of Darren Simpkins and his wife, Kelly Simpkins, Ted Skarbowski warned Kelly Simpkins that the Welks would sue them if they testified that they gave Dr. Foland permission to perform the injections”, according to Ferrill. “Darren Simpkins nonetheless testified in his deposition that he gave Dr. Foland permission to inject the horse, and the Welks sued the Simpkinses in federal court for breach of fiduciary duty”, Ferrill said. The federal case against the Simpkinses was later dismissed because the statute of limitations on the Welks’ claims against the Simpkinses had already run. 

As an aside, I briefly discussed the Simpkins case and its significance in this prior post

In Judge McBryde’s Memorandum Opinion and Order of March 10, 2010 in the federal case, Judge McBryde stated on page 20, “To put the matter mildly, the testimony given by plaintiffs on February 10, 2010, is suspect.”  He then goes on to explain how the Welks’ deposition testimony in the case against Dr. Foland directly contradicts their depositions in the federal court case.

According to the Champagne Ranch website, Juan Bad Cat stood at stud in 2011 at ESMS in Weatherford, Texas for a fee of $1,500 plus chute fee.

In December 2011, Judge Quisenberry reduced the amount of attorney’s fees awarded to Dr. Foland by the jury as a result of a JNOV (judgment notwithstanding the verdict) motion filed by the Welks’ lawyers. Nonetheless, the final judgment still ordered the Welks to pay damages to Dr. Foland and his clinic, and the Welks took nothing on their claims. According to Ferrill, the Welks also had to pay their own attorneys’ fees pursuant to their fee agreements with their lawyers.

Case Information: Larry and Lynn Welk v. Dr. Jeffrey A. Foland and Weatherford Equine Medical Center P.C., Cause No. CV-07-1322 in the 415th District Court of Parker County, Texas; Lynn Welk, et al. v. Darren Simpkins, et al.; Case 4:09-CV-00456-A in the United States District Court for the Northern District of Texas (Fort Worth Division).

**Note: Thank you to the readers who requested that I cover this case on the Equine Law Blog last fall after the jury reached its verdict. Generally, my policy is to not comment on a case until after its full and final disposition, which in this case happened in late December, 2011. Thank you for reading and for submitting topic suggestions!**

I am so excited, y’all! Yesterday, the ABA Journal released its 2011 list of the 100 best law blogs (“blawgs”), and the Equine Law Blog was included on the list.  I am so happy and honored that this blog was selected from over 1,300 worthy nominees. Thanks to the readers who make this blog possible and worthwhile. Thanks especially to Holden Hoggatt, equine attorney from Jennings, Louisiana, and others who nominated this blog for inclusion on the Top 100 list.

The Equine Law Blog is now up for another vote in the “Niche” category of law blogs. There are a whopping 14 blogs included in the “Niche” category, including heavy hitters like China Law Blog and TaxGirl.  You should check out the amazing blogs on the Top 100 list, if you have not already.

Here are some of my favorite blogs on the Top 100 List:

  1. Popehat
  2. The Appellate Record
  3. Connecticut Employment Law Blog
  4. Food and Agriculture Law Blog
  5. Real Lawyers Have Blogs

In case you’re wondering how to spend all your “free time” between now and December 30, 2011, you can vote for the Equine Law Blog in the “Niche” category by clicking on the ABA Journal Blawg 100 badge in the left hand column of this blog. You don’t have to be a subscriber of the ABA Journal or a lawyer to vote. Pardon the "bleg," but I would appreciate your vote!

Thanks again, everyone, for your support and for your readership of the Equine Law Blog.  Have a great weekend!

Last night’s “All Things Equine” event, held at the National Cowgirl Museum and Hall of Fame in Fort Worth, was a great success. Approximately 60 attendees from across the North Texas and beyond were in attendance. Guests were greeted by the women of the TCU Womens Equestrian Team, who handed out awesome LL Bean-style totes loaded with goodies and materials. 

Pat Riley, Executive Director of the Cowgirl Museum, was in attendance at the event and graciously opened the entire museum and gift shop to attendees after normal business hours.

The evening commenced with an elegant cocktail hour, catered by Reata, put on by hosts US Trust and Marsh.  Afterwards, the panel of experts held their equine business and risk management forum in the Cowgirl Museum’s theater, which was equipped with an excellent PA system manned by Cowgirl Museum staff. 

Here are some highlights from the presentation, in order of speaker appearance:

  • I (Alison Rowe) covered the main sources of business-related disputes involving horses and how to avoid them. The sources of equine litigation I spoke on included 1) transfer of title disputes; 2) fraud and negligence claims involving lameness issues discovered soon after a sales transaction; and 3) partnership / possessory disputes. Some take-aways from my portion include 1) especially for expensive horses, always insist on a thorough pre-purchase exam that includes radiographs of all limbs and a blood sample; 2) never provide a bill of sale or turn over possession of a horse until all pre-sale conditions have been met; 3) put all long-term agreements such as partnerships and training agreements in writing and include all important terms.
  • Gina Teresi of Chartis Insurance flew in all the way from Rochester, New York to discuss the risk transfer features of equine, farm and ranch insurance. Gina’s presentation centered on how important it is for equine and ranch owners to 1) discuss with their agent the specifics of how their horse operations work; and 2) choose an insurance agent who specializes in equine, farm and ranch insurance and has industry experience. Gina discussed ways in which these safeguards help owners ensure that all areas of risk are identified, considered, and covered “in black and white” in the insurance policy.
  • John L. Taylor of US Trust discussed the wide array of corporate fiduciary (trust) assistance that he and his colleagues use to protect the assets of affluent individuals who own horses and ranches. John, a native of rural West Texas, and his team do everything from finding, buying, selling and financing the ranch land, to finding tenants, managing crops or livestock, risk management, enhancing ROI on investments, and working with wealth strategists to make sure that horse and ranch owners’ estate plans are in line with their goals.
  • Logan Fiorentino, hunt seat head coach of the TCU Womens Equestrian Team, explained the process of how horses are donated to her program and answered audience questions concerning things such as eligibility and the scouting process.

After the panel concluded, there was an engaging Q&A session during which attendees posed questions to the speakers. 

The open bar stayed open after the event, and many attendees hung out for a while to chat, exchange business cards, and tour the museum. 

If you missed the event and have questions or would like contact information for the panelists, please let me know.  US Trust and Marsh are planning a similar event for next year, and I will be sure to post information about it when it becomes available.

Some horse breeders, trainers, and consignors who are in the business of selling horses advertise “exchange policies” on their websites. The typical exchange policy contains language promising that a buyer can exchange a horse purchased from the seller for another horse owned by the seller of the same or lesser value within ___ days of the sale. Posting an exchange policy of this nature on the Internet is not a good idea, in my opinion.

Don’t get me wrong–good customer service is paramount to a seller’s reputation. Sellers can surely offer a buyer an exchange horse if a particular situation warrants it and a suitable exchange horse is available. But so much can go wrong if a seller offers each and every buyer the “right” to exchange a purchased horse. For instance:

1)         Some buyers do not get a pre-purchase exam. Even for buyers who do get a pre-purchase exam, they do not check for every malady, disease, or infirmity due to the expense involved. This is problematic when an exchange has been offered. It can be very difficult to tell whether the horse is returned in the same or better condition as when he left the seller’s property.

2)         Exchange policies may work great for retailers where there is price tag on each item in the store and the same items can be found on-line or in other stores. But establishing the value of the exchange horse can be difficult. The seller’s asking price is not always the horse’s fair market value. Reasonable minds can differ as to the value of a horse. Even professional equine appraisers may disagree. 

3)         A seller may not have an exchange horse that possesses all the same qualities as the original horse within the stated time frame. This leads to a lot of confusion. Does the buyer have to keep the horse until the seller obtains a suitable replacement? Does the seller have to keep and feed the buyer’s horse until a suitable replacement has been obtained by the seller? How long will it take the seller to find a suitable replacement?

4)         If a buyer thinks he can simply return the horse for an exchange after 30 days if it doesn’t work out, he may be encouraged to purchase a horse without first inspecting it or spending the money to have a thorough veterinary examination done. This is problematic for several reasons. First, as discussed above, a seller who has offered an exchange policy cannot establish that the horse is being returned in the same condition if no thorough pre-purchase exam was done. Further, a buyer may come back to seller after the exchange policy has expired and demand a refund or exchange because the horse has a soundness or health issue. The presence or absence of a pre-existing condition is then hard to prove because no pre-purchase examination was done.

Due to all of these issues, an exchange policy on horses cannot function as simply as a similar policy offered on household goods sold by Home Depot, Target, and other retailers. Instead of offering a blanket exchange policy on the Internet, sellers should take an “all sales are final” approach and encourage all buyers to get a thorough pre-purchase exam and to inspect the horse prior to purchase in person or via an agent. Taking this approach does not prevent sellers from providing an exchange horse after the fact where the circumstances warrant it. 

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The issue of horse slaughter is on my mind today after reading a news story about the introduction of a U.S. Senate bill proposing the recommencement of horse meat inspection funding.  That’s when I poked around on the Internet a bit and found the "Haters List".

In case you haven’t seen it, the blog Wild Horse Haters & Horse Slaughter Promoters published a lengthy list of horse hatin’ people and groups (i.e. opponents of the horse slaughter ban in the U.S., according to the blog’s publishers) so that the public can boycott them, their members, and their services.

A link to the Haters List can be found here.  The Haters List includes the American Association of Equine Practitioners (AAEP) and just about every major U.S. horse association, cattle association, and farm association.

Note:  the publisher(s) of the Haters List and the blog on which is appears remain(s) anonymous.

I am a life member of two associations on the Haters List: the American Paint Horse Association and the American Quarter Horse Association.  What about you?

Milt Toby, a colleague of mine in Kentucky, did a blog post a while ago about how the issue of horse slaughter has a way of dividing people. But can we draw general lines to determine who, in general, is in favor of laws allowing for the processing of horse meat in the U.S. versus who is against such laws? 

Upon review of the Haters List, it would seem to me that in general, those who support humane horse processing in the United States are those who, either directly or indirectly, are in the horse business.  This includes the AAEP, a national group of equine veterinarians whose mission includes "meticulous concern for the health and welfare of the horse". 

There are of course others who support horse processing in the U.S. who aren’t directly or indirectly in the horse business. One example is Fort Worth Star Telegram journalist Bob Ray Sanders.  Mr. Sanders’s recent editorial entitled “Congress Should Revisit Ban on Horse Slaughter” cites evidence from the recent Government Accountability Office report.

And surely there are some in the “horse business” who are in favor of government bans on processing horse meat in the U.S.

But assuming the Haters List is correct, it tells us a lot about where the “line in the sand” is drawn. The Haters List seems to indicate that, in general, most horse businesses and equine veterinarians are in favor of humane horse processing in the United States. Do you agree with this assessment? 

While you ponder this poignant question, I’ll leave you with a quote from Milt Toby’s blog this week:

I think the world would be a better place if horses were not being slaughtered for food anywhere.  I think the same thing about cows and pigs and sheep and chickens and tuna and salmon, and I think it’s logically and morally inconsistent to categorically oppose one without opposing all.  And no, I’m not a vegan."

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**19 SEP 2011 Clarification:  Out of all of my readers, only two individuals read this post and thought that I agreed with the publishers of the "Haters List" and that I don’t believe that any animals should be processed for meat.  Although most people "got" where I was coming from on this issue, this alterted me to the fact that I may need to clarify some things.  I was "poking fun", tongue in cheek, at the anonymous publishers of the "Haters List" because I feel that their methods greatly reduce their credibility.  I was also asking if anyone agreed with me that it seems that most equine vets and most people who are in the horse business support humane processing.  As far as Milt Toby’s quote goes, I read it as saying that Milt believes you can’t categorically oppose humane horse slaughter unless you also oppose the humane slaughter of other animals.**

Happy Thursday on a short Labor Day holiday week, everybody!

Today’s post is a reprint of a "blurb" I did for a colleague’s newsletter this week.  My colleague, Luc Schelstraete, is a top-notch equine attorney practicing in the Netherlands and his firm is called European Equine Lawyers.  Luc and I are pictured below at the "Poco Bueno" brand clothing booth at the Americana 2011 trade show in Augsburg, Germany.

There is no federal law in the United States that uniformly governs documentation and disclosure requirements for horse sales. Only three U.S. states have enacted statutes specific to horse sale documentation and disclosure requirements (California, Florida, and Kentucky).

In general, the horse sale statutes in California, Florida, and Kentucky [click hyperlinks to view statute / rules] all require the following for most private treaty horse sales:

1)         A written bill of sale that is a) signed by both parties, and b) sets forth the purchase price for the horse;

2)         Written disclosure to both purchaser and seller of sales commissions in an amount or value of $500 or more; and

3)         Written consent by both purchaser and seller if someone is acting as a dual agent (i.e. a sales agent for both the buyer and the seller of the horse).

The penalties for failure to comply with these statutes can be harsh (i.e. “treble damages”). Determining which state’s law might apply to an international horse sale involving a buyer or seller in the United States might be tricky for a party based in Europe. 

Due to these concerns, parties to all international horse sales involving a party in the United States would be well advised to at least comply with points 1-3 above and further stipulate in writing which state or country’s law will apply in the event of a dispute arising from the horse sale. 

Parties are further advised to review Florida’s rules carefully if they might apply to a sale. Florida’s rules contain more extensive requirements for horse sale documentation and disclosures than those found in Kentucky and California’s statutes."

As a P.S., don’t forget that tomorrow (September 9) is the deadline to nominate blogs for the "ABA Best 100 Law Blogs" and I’d appreciate your vote.  See my bleg from August 11 for more info!

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As of June 17, 2011, the Texas Equine Activity Limitation of Liability Act was amended to include most common farm and livestock animals. The new Act will now be called the “Texas Farm Animal Limitation of Liability Act.”

In short, the immunities related to damages arising from horse activities found in Chapter 87 of the Texas Civil Practice & Remedies Code [formerly referred to as the “Texas Equine Activity Limitation of Liability Act”] now apply to all “farm animals”. A “farm animal” includes: an equine animal, a bovine animal, a sheep or goat, a pig or hog, a ratite [which, in case you have never heard of a “ratite”, includes an ostrich, rhea or emu], and a chicken or other fowl. 

The 82nd Texas Legislature [regular session] adopted amendments to the former Texas Equine Limitation of Liability Act through Senate Bill 479, the text of which can be found here. While most statutory amendments and new laws from the 2011 legislative session will not be effective until September 1, 2011, the amendments to the Act became effective “immediately” upon the requisite 2/3 vote in the Texas House on June 17, 2011.

The amended statute only applies to causes of action that accrue on or after June 17, 2011. 

Notable amendments to the Act include:

  • “Farm Animal Activities” now include rodeos, “events” in general, and “handling, loading, or unloading” a farm animal;
  • Providers of veterinarian and farrier services are now included in the definition of “Farm Animal Professional” ; and
  • The Chapter 87 warning sign language that is now required to be posted by “Farm Animal Professionals” is as follows:

WARNING: UNDER TEXAS LAW (CHAPTER 87, CIVIL PRACTICE & REMEDIES CODE) A FARM ANIMAL PROFESSIONAL IS NOT LIABLE FOR AN INJURY TO OR THE DEATH OF A PARTICIPANT IN FARM ANIMAL ACTIVITIES RESULTING FROM THE INHERENT RISKS OF FARM ANIMAL ACTIVITIES.

“Farm Animal Professionals” should post new warning signs containing the updated version of the Act’s warning language. See the link above to the newly-adopted language for the warning sign language and provide same to whomever you have make new signs for your property. It will probably be a while before signs containing the updated warning language will be mass-produced and sold at places like Tractor Supply Co., feed stores, et cetera.

Related Post: Victory for Texas Horse Industry in Texas Supreme Court

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The Honorable Kenneth M. Hoyt, district judge for the Southern District of Texas, rejected claims for lost profits brought by Jim Simpson, Ken Ridenour, and Mel Karr arising from injuries allegedly sustained by “Jess for th Memories” [sic], an AQHA race horse they co-owed.

Like many race horses, Jess received maintenance joint and suspensory injections. After receiving a couple of rounds of injections in his hind and fore limbs in 2009, Jess broke his maiden as a 3-year-old at Sam Houston Race Park.   Here is the story on Jess’s win.  About a month after Jess broke his maiden, Dr. Tom Hays at Elgin Veterinary Clinic observed problems in Jess’s stifles and could not rehabilitate him. Jess was no longer able to race. Judging from the pleadings in the case, Jess was gelded at some point after he won his race at Sam Houston.

Jess’s owners sued Louisiana-based Baronne Veterinary Clinic, Inc. They alleged that Dr. Ed Baronne was negligent and failed to meet the standard of care when he performed joint injections on Jess, allegedly resulting in “debilitating joint infections.” Baronne filed a motion for summary judgment in the case.

In his Memorandum Opinion and Order on Baronne’s motion, Judge Hoyt allowed the plaintiffs’ negligence claim to move forward, but dismissed the plaintiffs’ gross negligence and lost potential profits claims, stating,

Texas law does not allow an injured animal’s owner to recover the animal’s lost potential profits…Rather, a plaintiff’s recovery is limited to the difference in the animal’s market value immediately before and after any injury alleged to have been caused by the defendant.

* * *

The plaintiffs seek to recover speculative lost profits for a gelded race horse, and that horse’s potential profits are far too uncertain to be recoverableHorse racing is considered gambling for a reason."

[Emphasis added, citations omitted]. 

The case settled shortly after Judge Hoyt’s opinion was issued, resulting in its agreed dismissal on April 1, 2011. 

Case info: Simpson et al v Baronne Veterinary Clinic, Inc., No. 10-CV-03032, filed Dec. 21, 2009 in the U.S. District Court for the Southern District of Texas.

Hat tip to Krysia Nelson at Equine Law & Business Letter for noticing this case first.

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When you find yourself in need of a lawyer, it’s always best to either call on an attorney whom you already know, or to call someone to whom you were referred by a person you trust. 

Because equine law is such a specialized niche practice, you might not already know an equine practitioner and you might not be able to get a referral from a trusted source. In these cases, your only option might be to “cold-call” an equine attorney whom you found through a Google search or on a social media outlet.

Once you’ve found the name of an equine attorney you’d like to call about your legal matter, here are some guidelines to consider before you make the first contact:

1)         Prepare for the Call. If you have been served with papers, look at the papers carefully and determine which court the matter was filed in, whether it is civil or criminal, and what the court is asking you to do and when. If you have received a demand letter, figure out what exactly the other party is demanding of you and by when. Have the papers in front of you when you call the lawyer, and have a plan lined up on how you can fax or email the papers to the lawyer immediately if necessary.

2)         Think About What You Want From the Lawyer Before the Call. If you are calling a lawyer to talk about suing someone, think about how to explain the problem and what you want in four sentences or less. The lawyer will follow up with questions pertinent to the legal issues raised by your short summary of the issue. 

A good example of a summary to start a conversation with a lawyer: “I think I want to sue the guy who sold me my horse. Two days after I got him home, he was crippled. My vet says the problem existed before I bought him and that he will never be sound again.”  Let the lawyer take it from there.  Try to refrain from going on tangents when you are answering the lawyer’s questions.

Before the initial call, think about whether you are willing to spend money on an attorney to pursue your claims. If the answer is “no”, your first question to the lawyer should be whether you can schedule a paid consult to help you investigate your claims, or whether the particular lawyer takes contingency cases.

3)         Be Prepared to Listen.  It is not the lawyer’s job to tell you what you want to hear. If you disagree with what the lawyer is telling you about your case, refrain from arguing with the lawyer (doing so will make him not want to take you on as a client).  It is best to listen and consider what the lawyer is telling you, and ask follow up questions if necessary. You should call another attorney for a second opinion if you have doubts about what a lawyer tells you about your case. Be mindful of the fact that if you insist on a lawyer who will only tell you want you want to hear, you might find yourself being represented by someone who is (1) a pushover, (2) dishonest, or (3) desperate for work. None of these scenarios will be good for you in the long run.

4)         Think About Timing.  You should not wait until 5 days before your trial or appearance date before calling the lawyer.  If you need a lawyer to draft an agreement or set up a business entity for you, you should call a lawyer at least two weeks before the work needs to be completed. Sometimes a task that you might think will only take a couple of days for a lawyer will take more time, because the lawyer has work that has to be completed for other clients who hired the lawyer before your matter came in.

Related Post: Is My Horse Case Worth Pursuing?

Hat tip to Ken at Popehat for providing the inspiration for this post.

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Denton County CourthouseAttorney 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 plaintiffFackler 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.

For additional information on veterinary malpractice suits, there is a helpful article  by David S. Favre published online by the Animal Legal & Historical Center.

******

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)