Veterinary Malpractice

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The law of veterinary malpractice is pretty much like that of its theoretical ancestor, medical malpractice. And although the numbers are tiny compared to medical malpractice, more veterinary malpractice suits are filed every year.

The fact is that for a dog owner, pursuing a malpractice lawsuit is rarely practical. By the time you factor in attorney fees, fees for an expert witness, and all the other miscellaneous costs of a lawsuit, the cost of going to court will probably exceed the amount eventually recovered. It’s best to settle the matter outside the courtroom. Many veterinarians carry malpractice insurance, and a dog owner may well be able to reach a settlement with the insurance company without going to court.

What's Malpractice?

Malpractice is an error that a professional, who is expected to have a certain level of competence because of special training and experience, shouldn't make. For example, if a veterinarian looks at a dog with mange and treats it for heartworm, that's probably malpractice, because the vet should know better.

Only issues of a veterinarian's professional competence and judgment are malpractice issues. Acts of simple negligence (carelessness that is unreasonable under the circumstances) for which anyone, not just a vet, would be liable do not constitute malpractice.

Some examples may help illustrate the point. Here are some actions that may constitute malpractice:

  • misdiagnosing a dog's illness
  • prescribing the wrong course of treatment, or
  • stopping treatment while a dog still needs veterinary attention.

Here are some that may be simple negligence:

  • leaving a dog on a heating pad too long
  • letting a dog escape through a door carelessly left open, or
  • failing to turn over a dog's body to a funeral organization.

The distinction between negligence and malpractice is important for two reasons:

  • It may be easier for a pet owner to win a malpractice lawsuit. Someone suing a vet for negligence must show that the vet acted unreasonably—that is, not as an average, reasonable person would have acted. In a lawsuit for malpractice, the vet is held to a higher standard of conduct: to escape liability, the vet's behavior must measure up to that of the average veterinarian (taking into account education and experience) under the circumstances.

EXAMPLE: Robin takes her dog, Sherlock, to the vet, afraid that the dog sprained a leg jumping for a Frisbee. That's the vet's diagnosis, too, but he's wrong; the dog actually has a fracture. Is Robin's vet liable for malpractice? Yes, if the average vet would have correctly diagnosed the problem.

Now let's say that after this bumbling vet keeps Sherlock for observation, he goes off for the weekend and forgets to leave the dog any food. Is that more malpractice? No. It is, however, simple negligence, if the average reasonable person wouldn't have done it under the circumstances.

  • There may be different deadlines for filing different kinds of lawsuits. State law may set different time limits for bringing a lawsuit for malpractice and bringing one for negligence. (This issue is discussed below.)

Who Is Liable

A veterinarian may be legally liable for not only his or her actions, but also for the actions of employees—the technicians and assistants who perform much of the hands-on treatment of a dog. And it may be a kind of malpractice if a veterinarian lets untrained or unsupervised employees take care of animals.

When Lawsuits Can Be Brought

In most states, both malpractice and simple negligence cases must be filed within one to three years of the injury. If you don't discover the injury until later, you may be able to start counting the one- or three-year period from the time you discover the injury.

As a rule, lawsuits do not improve with age; if attempts at settlement don't work, file promptly. If you are in doubt about when you must file, see a lawyer or look up your state's law (usually called the "statute of limitations").

Suits against a government agency (for example, if the vet at a city-run clinic neutered a dog but bungled the surgery) must usually be preceded by a claim against the government made within about 100 days. If the claim is denied, a lawsuit may be filed.

What Courts Can Be Used

What court a lawsuit belongs in depends on how much money is being sued for. Small claims court is available, and advisable, for smaller disputes, up to $10,000 in many states. (Look up your state’s small claims court limit.) 

Compensating an Owner

Putting a dollar value on the death or injury of a pet is difficult, to say the least, and the rules are different in different states. Here is a summary of what a pet owner may be able to sue for and collect:

  • cost of treatment necessary to fix damage caused by the malpractice
  • market or replacement value of the pet
  • special or sentimental value (in some states only)
  • emotional distress (under certain circumstances), and
  • punitive damages (if the veterinarian's conduct was outrageous or intentional).

For more on this, see ”Compensating a Dog Owner.” 

What an Owner Must Prove

To win a malpractice lawsuit, a pet owner must prove two things in court:

  • the veterinarian acted incompetently or carelessly, and
  • the incompetence caused an injury.

Proving Incompetence

A veterinarian is responsible for conforming to professional standards of conduct. One who doesn't is liable for any injury that results.

The standard of conduct for veterinarians. A dog owner must prove that the vet acted incompetently—that is, not as competently as other veterinarians. Then the question is: what other veterinarians? The ones in the town, state, or the whole country? Specialists or general practitioners? The most highly skilled vets or the hypothetical "average" one?

In general, a veterinarian's skill and diligence are judged against those of an average practitioner, not a specialist or unusually skilled one. A vet who is certified as a specialist by a veterinary specialty board is held to a higher standard.

EXAMPLE: Robin's Frisbee-chasing dog, Sherlock, has a hairline fracture of his leg, which a veterinarian of ordinary competence could miss. Robin takes Sherlock to Bones-R-Us, a clinic staffed by vets who specialize in orthopedics and charge extra for their expertise. A specialist there who missed the fracture, when a competent orthopedic vet would have caught it, would be guilty of malpractice.

Some states say that a veterinarian's competence is to be judged against that of other veterinarians in the community. This can cause problems at trial, because only another local vet can testify as to community standards of care. Especially in small towns, it can be tough to find a vet willing to testify against another practitioner. Also, a local standard may not promote competence; instead, it may protect vets who don't live up to statewide or national standards.

Other states have rejected the community standard in favor of comparing vets to others "similarly situated," though not necessarily in the same community. (Ruden v. Hansen, 206 N.W.2d 713 (Iowa 1973); Swan v. Lamb, 584 P.2d 814 (Utah 1978).) Factors include available facilities and size and location of the town.

Evidence of incompetence. In some cases, it is obvious that a veterinarian made a serious mistake. If a dog has fleas which the vet treats for ringworm, that obviously falls short of professional competence. Very often, however, it's necessary to get an expert witness—that is, another veterinarian—to testify about the appropriateness of the first veterinarian's actions. Only a veterinarian can testify about another one's professional judgment, which is usually the critical issue.

For example, a negligent misdiagnosis could be malpractice. But the fact that a veterinarian doesn't correctly diagnose an animal's illness doesn't mean that the vet fell below the required standard of "care and diligence." Perhaps it was a difficult case, with contradictory symptoms, and would have confused any veterinarian of normal competency. (Brockett v. Abbe, 206 A.2d 447 (1964) (suit for misdiagnosis dismissed because no evidence that misdiagnosis was negligent).) If that's true, the veterinarian was as competent as the law requires.

Small claims court evidence rules. In small claims court, letters and similar kinds of evidence are admissible. If you can take the dog to an out-of-town vet and get a written second opinion, the vet won't have to show up at your court hearing in person to testify. In some states, including California, testimony can even be taken over the phone.

In small claims court, where evidence rules are much less strict than in regular court, it may be enough simply to report that another veterinarian quickly diagnosed or fixed a condition that baffled the veterinarian who's being sued. For example, an Ohio couple took their dog to a vet for an ear problem. The veterinarian prescribed (three times) antibiotic eardrops, but the condition kept worsening. A second veterinarian immediately spotted a tumor in the dog's ear; the dog required extensive surgery. An appeals court ruled that the dogs' owners had met their burden of proof. (Lewis v. Hendrickson, No. 02CA18 (Ohio App. 2003).)

Proving the Malpractice Caused the Injury

It's not enough to show that a vet did something and your pet was injured; the connection between the act and the injury must be proven. Again, expert medical testimony is often necessary.

EXAMPLE 1: A woman sued a veterinarian, claiming that her horse turned into a "killer" after the vet operated on its leg. She offered no proof of a connection between the surgery and the change in disposition except that the horse's behavior deteriorated after the operation. She lost her case. (Southall v. Gabel, 293 N.E.2d 891 (Ohio 1972).)

EXAMPLE 2: An owner brought a German shepherd, who was having trouble giving birth, to a veterinary hospital. The veterinarian on duty called in a surgeon. The surgeon arrived later that evening and performed a cesarean section, but only two pups lived. The owner sued for malpractice, but presented no expert testimony at trial. The court ruled that the owner had not proven that the veterinarians' actions caused the injury. Denaro v. New Haven Central Hospital , No. CV02046220697S (Conn. Super. 2004).

 

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