Twenty years ago, most people had never heard of veterinary malpractice. Recently, however, veterinary malpractice gained awareness and appears more often. Veterinary malpractice has evolved and developed into a viable cause of action for those who feel their veterinary did not perform properly. This article will explain what veterinary malpractice means, the standard to which veterinaries are held, how to prove a veterinary malpractice case, what you will be able to recover in a malpractice case, and what to do if you believe a veterinary has committed malpractice.
Defining Veterinary Malpractice
In general, veterinary malpractice means that the veterinary did not perform up to the standard required for veterinary practitioners in his or her field. Veterinary malpractice can occur in several ways. First, a horse owner could suspect an animal suffers injuries due to a veterinary's abuse. Second, a horse could be injured or die due to a veterinary's lack of care, neglect or improper care. Finally, a veterinary could breach the duty owed to his or her client, causing damages to the client. The latter appears most frequently. The perfect example is when you hire a veterinary to conduct a pre-purchase exam on a horse that you plan to purchase. If the veterinary fails to adequately evaluate or examine your horse, and you suffer damages as a result, the veterinary could be held liable for malpractice.
Elements of a Veterinary Malpractice Case
In general, veterinary malpractice arises when the veterinary commits professional negligence in carrying out his or her duties. Professional or veterinary malpractice requires the horse owner to prove the elements of negligence, but with a heightened standard of care. Negligence includes the following four elements: (1) duty; (2) breach; (3) causation; and (4) damages.
1. Duty. A veterinary and horse owner create a professional relationship whenever the veterinary agrees to perform services or give medical advise regarding their animal. When this professional relationship is created, the veterinary owes to the horse owner a duty to, at a minimum, act as a reasonable veterinary would act in the same or similar situation. That means the veterinary must use the reasonable care, skill and diligence an average veterinary would use in performing his or her services. If a veterinary holds himself or herself out as a specialist, that veterinary will be held to an even higher standard of care - that of a reasonable veterinary who specializes in the same area.
2. Breach. A veterinary's "breach" of the duty owed to a horse owner occurs when the veterinary's actions fall below that of a reasonable veterinary in the same situation. An example of a veterinary breaching his duty is where the veterinary examines the horse, but fails to detect an illness. If a reasonable or average veterinary (in that veterinary's field) would have detected the illness, then the veterinary committing the error could be held liable for veterinary malpractice.
3. Causation. In order for the vet's actions to result in liability to the horse owner, the veterinary's breach of the duty owed to the horse owner must cause injury to the horse or damages to the horse owner. There must be a nexus or causal relationship between the veterinary's actions and the horse's injury or horse owner's damages. Often, horse owners have difficulty establishing causation, as it is often difficult to prove that the veterinary was indeed the cause of the horse's injury. Take for example the undetected illness example. The veterinary could claim that when he examined the horse, it did not have the illness, and that the illness arose after the veterinary's examination.
4. Damages. The final element to a negligence claim includes damages. Without damages, no case will exist and there will be no veterinary malpractice. For example, damages can include the money the horse owner expends in rectifying the veterinary's error, the decreased value in the horse, and in rare cases, owners can collect the reasonable sentimental value of the animal. Rarely will a court award a horse owner his attorney's fees related to bringing the malpractice action against the veterinary. Keep in mind that the law view horses as property and thus will normally not award pain and suffering.
How to Prove Your Case
In order to prevail at trial, an aggrieved horse owner must prove all four elements of professional negligence. In order to establish the duty - how a reasonable veterinary would act in a similar situation - the horse owner will need to have an expert. Similarly, the expert will need to testify that the veterinary's actions fell below the standard of care. The expert, undoubtedly a veterinary, must testify as to what the veterinary on trial should have done, and how that veterinary's actions fell below the required standard of care.
Once the duty and breach have been established, the horse owner will be required to prove damages. If, for example, your horse dies as a result of the veterinary's care, the owner will be entitled to the reasonable value of the horse prior to his or her death. Again, the owner will need to produce experts or appraisers to establish this value. Other damages also require substantiation. If the horse owner spent money with another veterinary in attempting to bring their sick horse back to health, those expenses could also be considered damages. In order to claim these expenses as damages, the horse owner must prove the damages - usually by producing proof of payment of such services. This would include a receipt, cancelled check or other proof of payment.
The final, and often most difficult portion of a horse owner's case, is proving the veterinary's actions caused the horse owner's damages. This requires the horse owner to establish that the veterinary's actions or inaction - not some other reason - caused the horse's injury or the horse owner's damages.
Insurance
In reality, most veterinaries carry malpractice insurance, which covers their errors and omissions. The insurance company will usually represent the veterinary in defending the malpractice claim, and they will usually vigorously defend the veterinary. If the horse owner is able to prevail against the veterinary, the insurance company will pay any damages awarded, up to the limits of the veterinary's policy.
What to Do if You Believe Your Veterinary Committed Malpractice
If you feel that you have been wronged or your horse has been injured as a result of a veterinary's malpractice, several steps should be taken.
Step 1: Take all steps necessary to rectify the malpractice - have another veterinary treat or examine the horse to ensure that no further injury occurs.
Step 2: Evaluate the elements of veterinary malpractice listed above. If, after such review, you believe the veterinary committed malpractice, you should contact your attorney and a separate veterinary to evaluate your situation.
Step 3: Contact your attorney. Your attorney will evaluate your ability to prove the legal elements of a malpractice claim. Especially in a case of veterinary malpractice, you should locate an attorney who practices Equine Law, as knowledge of horses is essential in such cases. Once you present your situation to your attorney, he or she will assist you in determining if you should pursue your case against the veterinarian.
Step 4: Seek a second veterinary's opinion. The second veterinary will provide information to you to assist you to determine the original veterinary committed malpractice.
Closing Thoughts
It is important to keep in mind that most states require you to bring a veterinary malpractice claim in a fairly short period of time after the event - usually one to two years. Thus, if you believe your veterinary committed malpractice, you should contact your attorney as soon as possible, so you do not compromise your legal claims.
Veterinary malpractice is very different than medical malpractice for people. Often in a medical malpractice case, there are significant claims for pain and suffering. The law views animals as personal property, which cannot have feelings and cannot suffer, and you will not be able to collect for the animal's pain. Only on rare occasions will an aggrieved horse owner be compensated for loss of sentimental value in their horse. Veterinary malpractice cases attempt to put the horse owner back in the financial position he or she was prior to a veterinary's misconduct.
