Equine legal Summary
I. Introduction
Since 1988, Catanese & Wells, A Law Corporation has published and distributed its newsletter Equine-Legal Summary whose content includes sample cases involving horse law and professional advices given by our experience horse lawyer team. The law firm publishes and issues this newsletter to its clients and friends in the equine community on a quarterly basis. The newsletter is free and may be reproduced with permission.
In this edition, the topic is Veterinary Malpractice. It is our hope that this newsletter will provide the reader a better appreciation of what constitutes veterinary malpractice and the consequences by reason thereof. In particular, it is hoped the reader will better acknowledge that an equine attorney can provide damages recoverable in the event that veterinary malpractice is proven.
II. The Typical Fact Pattern For Veterinary Malpractice
In years past, veterinary malpractice cases were very rare. They were rare because usage and custom mandated that lawsuits against veterinarians not occur. People in the horse business treated their veterinarian like a member of the family and so it was painful to think about bringing a lawsuit against the veterinarian. And, other veterinarians were loath to testify against their brethren even if they believed that veterinary malpractice did occur. Over the last twenty years, however, these inherent brakes on veterinary malpractice litigation have been slowly removed. More and more, in today's world, when veterinary malpractice arises it is pursued by the injured party. Primarily, cases are pursued because the dollar amounts involved are so significant. Horses no longer sell for $10.00, rather many times they sell for $10,000.00 or even $1M or more. When veterinary malpractice occurs the damage may be so severe that the aggrieved party, notwithstanding a close relationship with the veterinarian, does not feel that they are capable of walking away from the loss.
What are some common fact patterns to a veterinary malpractice case? A veterinary malpractice case typically arises in one of several circumstances. A very common one is the pre-purchase examination. For one reason or another the veterinarian did not undertake the appropriate steps (or usual and customary steps) in examining the horse. It may be failure to x-ray the horse's legs if it is a racehorse or failure to do some other examination which the buyer specifically requested. Another common situation occurs where the horse is taken to the veterinary hospital for emergency surgery. It may be surgery for colic, other internal problems, leg surgery, or another injury. Invariably, the veterinarian fails to act with reasonable and ordinary care. These actions of the veterinarian are the proximate cause (or the legal cause) for the animal's death or permanent injury. The other most common situation arises where the veterinarian has failed to properly diagnose, treat or care for a horse when the veterinarian makes farm visits. Many veterinarians have a standard schedule and routine for the caring of horses and it is during this normal schedule when problems may arise. In some very unique situations, veterinary malpractice may occur with artificial insemination or in connection with fertility examinations. For example, an insurance carrier asks a veterinarian to determine and confirm the fertility of a stallion about to be syndicated and for some reason or another the veterinarian fails to properly conduct a fertility examination thereby causing insurance to be issued based upon an improper assumption of fertility.
III. What Constitutes Legal Veterinary Malpractice
Generally speaking, veterinary malpractice is professional negligence by a veterinarian in carrying out his or her duties. Legal negligence has four particular elements - a relationship between a veterinarian and a client (notwithstanding that the horse is the patient) which establishes a duty of care, the veterinarian making an act or omitting to act which falls below the standard of care for veterinary practice (this is the critical question of most veterinary malpractice cases), the breach of duty by the veterinarian to properly care for the horse amounting to the proximate (or legal) cause of injury and actual damages being sustained by the client due to the veterinarian's negligence. In virtually all veterinary malpractice cases the elements which are most difficult to prove are the elements of breach of duty and proximate cause. Keep in mind that if any one element is found to be lacking then no veterinary malpractice will be found. It is the burden of the plaintiff (or the party bringing the lawsuit) to prove by a preponderance of the evidence each element of the legal cause of action for veterinary malpractice.
IV. What Kind Of Recovery Is Available To The Aggrieved Client If Veterinary Malpractice Has Occurred?
Generally speaking the damages which are recoverable in cases of veterinary malpractice are those which generally follow from the veterinarian's negligence. For example, if a horse died and its fair market value was $200,000.00 on date of death then the aggrieved party would be able to claim and should be able to recover $200,000.00 for the lost animal. Also, the aggrieved party, in some jurisdictions, might be able to recover loss of profits, costs and expenses related to the litigation, pre-judgment interest, and potentially attorneys' fees. Keep in mind that most veterinary malpractice actions include not only a claim for negligence but usually a claim for breach of contract as well. The damages available in breach of contract cases are different than those available in negligence claims. Normally, before a matter is decided by a judge or a jury the aggrieved party must make an election as to whether they wish to recover for the negligence claim or the contract claim.
V. Conclusion
In most veterinary malpractice cases the defendant veterinarian will typically have errors and omissions insurance which provides a defense for any claim, but also provides for payment of any award made due to the veterinarian's negligence or professional malpractice. Most reputable veterinarians maintain adequate errors and omissions insurance for claims of veterinary malpractice. However, in most instances the standing rule for veterinary defendants is to defend and not settle cases. In our experience with horse law, almost all veterinary malpractice cases go through extended litigation before they settle. Many go to trial.
If one believes they have been injured due to veterinary malpractice, a recommended protocol would be to seek out competent equine legal counsel and an independent veterinarian (possibly 2) to investigate the veterinary record to determine if veterinary malpractice has occurred. Also, keep in mind that in most states there is a short statute of limitations for veterinary malpractice or negligence cases. In California it is one year statute, meaning that from the date someone is aware of the malpractice and has suffered damage by reason of it they need to file suit within one year from knowledge of the damage and the malpractice otherwise they risk the court barring any action against the veterinarian. So, time is of the essence with respect to any veterinary malpractice claim.
It is hoped that you, the reader, will not have an issue regarding veterinary malpractice. But, if you do, use these guidelines in evaluating your case. If you still have questions pertaining to veterinarian malpractice, fell free to contact our horse attorney to assist you.
