Veterinary Malpractice

Leading the Evolution of Animal Law
Veterinary malpractice is arguably the most rapidly evolving area in animal law and is considered by many to be the fulcrum for what will happen elsewhere. As in most areas of animal law, a dearth of state and federal statutes presently address veterinary malpractice. As societal values change, however, and animals increasingly are treated as family members, the courts must follow old common law, find good faith reasons to modify it, or wait for legislative enactments. Consequently, veterinary malpractice is attracting the attention of practicing attorneys. It is the subject of intense interest from professors and scholars, as reflected in challenging articles by Richard L. Cupp & Amber E. Dean, Vets in the Doghouse: Are Pet Suits Economically Viable? 31 THE BRIEF, Spring 2002, at 42; Christopher Green, The Future of Veterinary Malpractice Liability in the Care of Companion Animals, 10 ANIMAL L. 163 (2004); and Rebecca J. Huss, Valuation in Veterinary Malpractice, 35 LOY. U. CHI. L.J. 479 (2004).

The only two models that permeate discussions about veterinary malpractice are based upon strained definitions of property (e.g., animate, constitutive, sentimental, sentient) or personhood (like a ship or corporation), yet animals—as logic would dictate—are neither property nor persons. Can talented legal minds bring all interests to the table and develop model statutory definitions for the word animals, beginning in the veterinary malpractice context? What would this change in nomenclature mean, in practical terms? Are we up to the challenge? This article explores these and other questions and problems for those who litigate or who will litigate veterinary malpractice cases.

The Medical Malpractice Model The medical malpractice model begins with a predictable sequence of proofs: establish duty, breach of duty, proximate cause, and damages, utilizing an appropriate medical expert to establish the appropriate standard of care. The verdict should represent equitable compensation for the injured party and further the societal goal, or economic efficiency, of preventing future injuries to others.

Comparison with Veterinary Malpractice Model
Superficially, the models and tort objectives for veterinary and medical malpractice would be identical, although counsel in a veterinary malpractice case would employ a veterinary expert rather than a medical expert. See McGee v. Smith, 107 S.W.3d 725 (Tex. App. 2003). Exploring the detailed application of these models, however, and examining whether they achieve tort objectives reveals them to be divergent. Consider economic damages. In medical malpractice, compensatory damages address monetary losses that range from lost wages and rehabilitation expenses to medical expenses, as well as other out-of-pocket losses resulting from the injury. See Raymund C. King, Medical Malpractice and Tort Reform, 6 TORTSOURCE, Spring 2004, at 1. In sharp contrast, economic damages for loss or injury to small animals usually are limited to their fair market value or replacement cost, although a few courts will allow for compensation for out-of-pocket investments in the animal. See Hohenstein v. Dodds, 10 N.W.2d 236 (Minn. 1943).

Some judgments reflect the “unique value” of a dog to the owner. In a recent case, a resident of Orange County, California, was awarded $30,000 for his mixed breed dog and $9,000 for veterinary bills. Laura Parker, When pets die at the vet, grieving owners call lawyers, USA TODAY, Mar. 15, 2005, at A.1. See also McDonald v. Ohio State Univ. Veterinary Hosp., 644 N.E.2d 750, 752 (Ohio Ct. Cl. 1994) (owner received $5,000 when his German Shepard was paralyzed due to “exceptional circumstances”). But see Petco Animal Supplies, Inc., v. Schuster, 144 S.W.3d 554, 563 (Tex. App. 2004) (owner not able to recover for “intrinsic value”).

Damage awards for noneconomic losses in medical malpractice cases may include amounts for pain and suffering, disfigurement, and loss of consortium, and can be expensive and unpredictable. In veterinary malpractice cases, compensation for noneconomic losses is rare. Oberschlake v. Veterinary Assocs. Animal Hosp. 785 N.E.2d 811 (Ohio Ct. App. 2003); Daughen v. Fox, D.V.M., 539 A.2d 858 (Pa. Super. Ct. 1988). But see Corso v. Crawford Dog & Cat Hosp., Inc., 415 N.Y.S.2d 182 (Misc.2d 1979) (court found that a pet “occupies a special place somewhere in between a person and a piece of personal property”). Awards for noneconomic losses may grow, however, given that a number of states have been, or will be, considering new legislation. See Katie J. L. Scott, Bailment and Veterinary Malpractice: Doctrinal Exclusivity, or Not? 55 HASTINGS L.J. 1009 (2004).

Confusion abounds and stems partly from the concept that the human is the client and the animal patient is only property. The courts also are addressing whose suffering should be compensated: the animal’s or the human’s. See Oberschlake, supra, and Daughen, supra. See also Nichols v. Sukaro Kennels, 555 N.W.2d 689 (Iowa 1996). In legal, veterinary, and legislative arenas, other models of compensation are being discussed to bypass these hurdles, including one based upon “companionship loss.” See Green, supra.

Obstacles to the Claim
Standards. The first obstacle in a veterinary malpractice case is determining whether the state where the action is brought holds veterinarians to a professional standard commensurate with the standards in medical malpractice. Downing v. Gully, D.V.M, P.C. 915 S.W.2d 181 (Tex. App. 1996); Ladnier v. Norwood, D.V.M., 781 F.2d 490 (5th Cir. 1986). An excellent starting point for research is www.animallaw.info, which lists malpractice cases (and many other animal law cases) from many states and well-researched articles by many authors.

Basis of claim. Do not assume you have a veterinary malpractice case. Common law evolved in an agrarian society where actions against veterinarians varied and included claims for conversion, breach of bailment, misrepresentation and fraud, strict products liability,and breach of contract.

Because societal values, including those held by judges, are changing, practicing attorneys must be sensitive to judicial views that common law standards are outmoded. A good example can be found in Price v. Brown, 680 A.2d 1149 (Pa. 1996), a case where an English bulldog died after it was not monitored properly following a surgical procedure to correct a prolapsed urethra. The appellate court found that professional negligence, rather than bailment theory, extends to veterinary medicine. But the dissenting judge advocated the bailment approach, in which “the personalty shall be redelivered to the person who delivered it in the same or an agreed to altered form.” Id. at 1155 (Castille, J., dissenting). See also Williamson v. Prida, 89 Cal. Rptr. 2d 868 (Ct. App. 1999) (court found that medical malpractice standards apply to veterinary malpractice).

Statutes of Limitations. The cause of action recognized by the courts, which can be far from certain in cases involving veterinarians (as illustrated in Price, supra), governs the statute of limitations. See also Southall v. Gabel, 277 N.E.2d 230 (Ohio Ct. App. 1971), where the court concluded, “Until the Supreme Court speaks, veterinarians are not included in the definition of Malpractice.” Id. at 299. Accordingly, any negligent act by a veterinarian was not subject to the one-year statute of limitations. Determine whether a special malpractice period has been established by state statute.

If the development of malpractice liability in the state is based on common law rather than statute, consider that a personal injury statute of limitations may apply. Also consider the possibility of a statute of limitations for injury to personal property. Counsel who believe a possible statute of limitations passed before litigation began would be wise to make a written disclosure to their client.
Experts. If the claim is a true veterinary malpractice case—where the negligence is related to the veterinarian’s professional services—an expert is needed unless the doctrine of res ipsa loquitor applies. The expert’s role, as in medical malpractice cases, is to establish the applicable professional standard. In the past, experts usually were classified as “in local” or from “similar communities”; current discussion has focused on whether, given modern technology and data distribution, standards should be based on the larger context of the veterinarian’s specialty. Both standards were codified in Louisiana, as discussed in Ladnier, supra. Unless a statute pertains, plaintiffs’ attorneys should assert a standard commensurate with available experts, and defense counsel should seek the greatest possible restrictions on the expert pool.

Conclusion
Problems with the application of the medical malpractice model to veterinary medicine invite both lawyers and judges to rethink how well our common law works in the context of changing societal values. Should we propose a legal standard based on a new legal term, “animals,” and then do the hard work of creating workable model laws? A host of questions arises: Should we welcome the expansion of economic and noneconomic losses in animal cases to increase the awards to satisfy tort equity and economic efficiency objectives? Are we comfortable with terms like “sentimental property,” in which animals are considered analogous to wedding rings or family heirlooms? Or do we prefer newer property terminology like “companion constitutive chattel”? Do we treat our pet like a family member and bring our considerable pocketbooks into veterinary offices, to be told in the end that our animal was only property? The price is high: the American Medical Veterinary Association reports that Americans spent $17 billion for veterinary care for cats and dogs in 2004. See U.S. PET OWNERSHIP AND DEMOGRAPHICS SOURCEBOOK 32, 35 (AVMA 2002).

There is a special place for TIPS in this discussion. Our Section has created an Animal Law Committee and given it the mandate to bring the best and brightest lawyers, with a variety of perspectives, to explore a possible paradigm shift in animal law. Veterinary malpractice is a good place to begin.


Barbara J. Gislason is chair of the TIPS Animal Law Committee, chair of the Minnesota State Bar Association’s Animal Law Section, and adjunct professor in animal law at Hamline University School of Law in Minneapolis, Minnesota. She can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

This article was originally published [OR A previous version of this article was published] in the TortSource (Vol. 7, No. 3).