Veterinary Malpractice Claims

Last Friday, for the fourth or fifth time, I attended the annual Animal Law Institute.  The Institute is a CLE program put on by Animal Law Section of the State Bar of Texas.  It moves around each year, but this year it was at Texas Wesleyan School of Law here in Fort Worth.

You may be wondering, “what is animal law, and is equine law a part of animal law?” I have been practicing equine law for years, and I still don’t really know the answer. According to Wikipedia,

animal law is a combination of statutory and case law in which the nature—legal, social or biological—of nonhuman animals is an important factor. Animal law encompasses companion animals, wildlife, animals used in entertainment and animals raised for food and research. The emerging field of animal law is often analogized to the environmental law movement 30 years ago.

Most of the speakers at the Institutes I have attended in the past have seemed to generally focus on 1) animal rights/welfare issues; and 2) issues related to animal rescues and public shelters. 

My equine law practice, by way of contrast, is primarily focused on business issues. That said, I have advised several equine-related 501(c)(3) nonprofit organizations.

Rick and I at Will Rogers Equestrian Center with two of our animals. 

This year’s Institute covered a lot of animal welfare/rights issues, but it also added an overview of equine law by Dawn Reveley, and another presentation on vet malpractice defense into the mix.   Below is a recap:

  • Will Potter, a journalist from Washington, DC, discussed the Animal Enterprise Terrorism Act. This is a 2006 federal law with which I was not previously familiar. According to Potter, the law was pushed by animal industry groups and corporations to target animal rights protestors by labeling their activities as "terrorism".  Read more about it on Will Potter’s blog, Green is the New Red. To loosely quote Potter’s [very sound] advice to would-be animal rights protestors: “Come up with a plan and get organized before you stage your protest, so people won’t think you’re crazy!” 
  • Don Feare, an attorney from Arlington, Texas, shared some excellent information for attorneys who represent animal rescue groups. Some main points include (equine nonprofits, listen up!) 1) animal welfare groups should incorporate as a nonprofit corporation to limit liability; 2) liability insurance is a necessity, especially if the organization is doing public adoption events; and 3) adoption contracts should make clear when title to the animal passes to the new owner and should be signed by all adult members of the household at which the animal is being placed.
  • Scott Heiser, a Portland-based attorney with the Animal Legal Defense Fund, talked about how his nonprofit organization helps local prosecutors win animal cruelty cases (both through financing and by helping try cases). Heiser discussed the “business records” exception to the hearsay rule, as it applies to veterinary reports in criminal animal abuse cases. In general, vet reports are not admissible in lieu of testimony under the business records exception if the vet report was “prepared specifically for use at trial.”
  • Nicole Paquette, Texas Senior State Director with the Humane Society of the United States (HSUS) in Washington, DC, covered the new laws from 2011 Texas Legislature that the HSUS believes benefit animals. These bills include 1) HB 1451, the “Puppy Mill Bill”–requiring licensing and inspection of dog and cat breeders who maintain 11 or more female breeding animals; 2) HB 1103–“Responsible Pet Owner Classes” required for convicted animal abusers; and 3) HB 2471–the “Good Animal Samaritan Bill”, which limits civil liability of people who render aid to an injured or distressed animal.
  • Dr. Don Ferrill (remember him from this post?) talked about how to successfully defend veterinarians in malpractice and negligence cases. His advice to plaintiffs: “Always pay your vet bill before you sue your vet.”

Watch this website for information on next year’s Animal Law Institute.

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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