Detailed Discussion of Veterinarian Malpractice

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Angie Vega Publish Year:  2022 1 Country of Origin:  United States
Summary: This article provides an overview of the history and current status of veterinary malpractice in the United States. It delves into the specifics of this cause of action, legal an nonlegal alternatives, and defenses.

I. Introduction

Veterinarians play a critical role in society. From administering vaccines to diagnosing and treating veterinary health conditions and performing emergency care, veterinarians help provide welfare to animals such as farm animals, companion animals, and zoo animals.

Similar to other professions such as doctors and lawyers, veterinarians are held to a higher standard of care in the exercise of their profession than the ordinary reasonable prudent person standard demanded from laypeople. This is because they are expected to possess superior knowledge and skill in their field above the general public. When veterinarians fail to act in accordance with this standard and, as a result, an animal under their care suffers death or injury, they may be liable. Animal owners may bring a veterinary malpractice lawsuit against the treating veterinarians. To prevail, the plaintiff animal owner has the burden of proving that the veterinarian’s conduct breached the standard of care established for the profession in a given geographical area and that that breach caused the plaintiff’s injury. The concept of malpractice was created by common law, and it did not originally apply to the veterinary field. For this reason, states have applied the concept of veterinary malpractice either by the enactment of statutes or by judicially expanding the existing doctrine.

The prevailing rule in the United States is that plaintiffs are entitled to recover the fair market value of their animals in malpractice cases, which means they are entitled to an amount that would allow them to acquire an animal with the same characteristics. Noneconomic damages such as emotional distress and loss of companionship are generally not allowed. Particularly in malpractice cases, even in the few states that allow this type of recovery for damage or destruction of personal property, harm inflicted by a veterinarian is usually excluded. Fair market value may be appropriate when the commercial value of the animal is substantial and the animal does not have any emotional value to their owner. However, in the case of com[anion animals, whose commercial value tends to be low, this type of recovery is usually nominal. The recovery available ultimately leaves pet owners without just compensation.

In early 2000, as companion animals became more akin to children to their owners, and this relationship became more widely recognized, a number of legal scholars predicted an increase in malpractice lawsuits over the upcoming years. However, it is nearly impossible to see how the malpractice lawsuit trend has moved in the past 20 years as there are not any reputable statistics available. Neither the AVMA nor the AVMA’s Professional Liability Insurance Trust, or PLIT, release numbers on veterinary malpractice suits. Even though there are no records of recent trends in veterinary malpractice that help understand whether more animal owners are bringing malpractices cases to court, with floods of money being poured into the pet industry due to the prevalence of companion animals in the household, it is reasonable to expect that more pet owners will continue to pursue litigation when companion animals suffer harm because of negligent veterinary treatment.

It is also reasonable to expect that pet owners will continue to push courts into recognizing greater damages for pet owners that go beyond the nominal amount of commercial value. It is important to note that it is not uncommon for courts to acknowledge that companion animals should not receive the same treatment as inanimate objects. Some of them have even gone as far as to recognize the existence of the human-companion animal bond. However, to date, this analysis dies there. A minority of states have increased damages awards by allowing recovery of veterinary costs and even intrinsic value when animals are killed or injured. This view is yet to be reflected in the case of malpractice, which continues to limit damages to fair market value.

II. Veterinary Malpractice Generally and History as a Cause of Action

Professional malpractice is a cause of action that applies to certain professionals based on the precept that with specialized training comes a higher duty to use reasonable care and skill in the exercise of those professions (Joyce Tischler, Sonia Waisman, Katherine Mary Hessler, Pamela D. Hart, “Animal Law: New perspectives on Teaching Traditional Law,” (2017)). Initially, this common law concept applied only to doctors and lawyers, and it began to be applied to veterinarians in the mid part of the twentieth century.

Veterinary malpractice is governed by state law; it can be created either by the enactment of a statute (veterinary practice codes) or by expanding the scope of existing common law concept of malpractice.

the term veterinary malpractice did not always apply to veterinarians and, in fact, some states still reject its application to the veterinary practice. Public policy in those states that apply professional malpractice principles to veterinary malpractice seeks to protect the public from negligent conduct and to discourage unqualified individuals from representing themselves as fit veterinarians. (Rebecca J. Huss, Valuation in Veterinary Malpractice, 35 Loy. U. Chi. L.J. 479 (2004)).

Some states such as Texas, apply medical malpractice principles to veterinarians. See Downing v Gully, PC, 915 SW2d 181, 182 (Tex App, 1996), where the court stated:

 Because there is no case law in Texas establishing how veterinary negligence cases are to be analyzed, the court will, as other jurisdictions have done, adopt the standard applied to physicians and surgeons in medical malpractice cases.

The duality of the profession and the status of animals seems to be the issue encountered by states that oppose the application of medical malpractice principles to the veterinary profession. On one hand, veterinarians belong to a specialized field that focuses on animal health care, much like doctors. They can also prescribe controlled substances as human doctors do. This, for some, could classify them as healthcare providers. They are a licensed profession and are required to take an oath where they commit to abide by the rules of their profession and to uphold the duty of care imposed in the practice of veterinary medicine. On the other hand, animals, and particularly family companions are patients to their veterinarians and family members to the companion families. Yet, they are considered personal property by the law. Additionally, veterinarians cannot form a client-physician relationship and cannot secure informed consent from their patients. See Sherman v Kissinger, 146 Wash App 855, 867; 195 P3d 539 (2008), where a dog owner sued a veterinarian and a veterinary hospital after her dog died. A Washington Court of Appeals held that the medical malpractice act did not apply to veterinarians.

It is important to note that not all veterinary mistakes amount to veterinary malpractice. Furthermore, the fact that an animal owner does not obtain the result expected is not an inference that the veterinarian acted negligently. For a claim of malpractice, the veterinarian must be acting in his professional capacity and the injury must come about as a result of the negligent diagnosis or treatment. Actions or omissions outside of this scope can fall under different causes of action such as negligence or breach of bailment.

Additionally, there is no legal duty that requires veterinarians to provide treatment to an animal that is ill or injured. In fact, a veterinarian is not liable for refusing to take an animal as a patient. To be subject to veterinary malpractice, the veterinarian must have a duty to treat, and this duty arises when the veterinarian in question voluntarily accepts to treat the animal and ends when the animal is released from treatment and the owner is informed (Principles of veterinary medical ethics of the AVMA, Principles with supporting annotations sec 2.2-4).

To qualify as a defendant under this cause of action, the person must be a licensed veterinarian. It is not enough to have significant experience treating animals. The person must be licensed in the state where they practice. As with other professionals, veterinarians are expected to have superior knowledge and skill, this is why a higher standard of care is required.

When filing a lawsuit for malpractice, plaintiffs should keep in mind that all 50 states classify animals, including companion animals as personal property. This classification is important because it affects the monetary recovery a pet owner may be entitled to. This means that even if malpractice is found, the animal owner’s recovery is most likely going to be limited to the animal’s fair market value. This might not be an issue if the particular animal holds significant commercial value, like in the case of horses. However, in the case of companion animals, where the commercial value is usually very low, litigation expenses might be far greater than the amount that could be potentially recovered. Animal owners are usually not allowed to recover noneconomic damages for harm to their pets. And even if a particular state allows this type of recovery, veterinary malpractice is often excluded. As an example, The Tennessee T-Bo Act allows recovery of noneconomic damages for harm to animals. However, it excludes actions under veterinary malpractice.

III. Elements of Veterinary Malpractice

The standard used for medical malpractice cases is often applied by analogy to veterinary malpractice cases (Rebecca J. Huss, Valuation in Veterinary Malpractice, 35 Loy. U. Chi. L.J. 479 (2004)). For a pet owner to be able to recover under veterinary malpractice, she must show by a preponderance of the evidence that the veterinarian in question “failed to use such reasonable skill, diligence, and attention as might ordinarily have been expected of careful, skillful, and trustworthy persons in the profession.” See Loman v Freeman, 229 Ill 2d 104, 119; 321 Ill 724; 890 NE2d 446 (Illinois, 2008). Even though the language of this legal standard varies in some jurisdictions, it generally has the same meaning. It requires veterinarians to act with the degree of care and skill in the exercise of their profession that other ordinary veterinarians would employ under similar circumstances. It does not require veterinarians to act like the most skilled professional, but just as an average, or ordinary one. See Milke v. Ratcliff Animal Hosp., Inc. ex rel. Ratcliff, 120 So. 3d 343 (La. App. 2 Cir. 7/10/13):

. . . A plaintiff must prove by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) the defendant breached that standard of care; and (3) there was a causal connection between the breach and the resulting injury. [P*7]

Compare the elements of veterinary malpractice in the case above with the Lauderbaugh v. Gellasch, Not Reported in N.E.2d, 2008 WL 5182915, 2008-Ohio-6500 (2008) case:

A veterinary malpractice claim has similar elements to a medical malpractice claim. The plaintiff must show (1) a duty to perform according to the appropriate veterinary standards; (2) that the veterinarian breached that duty; 3) that the breach was the proximate cause of the damages; and (4) that the plaintiff suffered damages."[P*1]

There is not such a thing as a universal veterinary standard of care for all species. This standard varies and might be very different depending on the species and the location of the veterinarian. For instance, the veterinary standard of care expected when treating a hog is not the same standard applied to veterinarians when treating a family dog. Additionally, that standard may differ depending on the geographic location. Veterinarians in a remote, small town may have a different standard in providing treatments and diagnoses for that hog, than for example a major city that has access to more availability of technology and veterinary resources. Discussed further infra subsection B.

Common practices that may give rise to veterinary malpractice claims include misdiagnosis that results in worsening a condition or death of an animal, performing veterinary procedures negligently, prescribing the wrong treatment, diagnosing a condition but treating it improperly, negligent immunizations, and failure to inform a client of the availability of alternative treatments and disclose the risks involved in treatments can be used to support malpractice claims. etc.

A. The veterinarian had a duty to perform according to the appropriate veterinary standards

Veterinarians have discretion when deciding whether to treat an animal. The duty to treat an animal is triggered when the veterinarian makes the decision to provide services and it continues until treatment is finished or the veterinarian informs the owner of the decision to release the animal as a patient. There is no legal obligation to provide veterinary services. Refusing to provide treatment to an animal does not give rise to malpractice, though there is a question as to the ethical responsibility to provide services in emergency situations. “Such emergency care may be limited to euthanasia to relieve suffering, or stabilization of the patient for transport to another source of animal care.” (Principles of veterinary medical ethics of the AVMA, 2019). However, refusing treatment under these circumstances does not create a presumption of malpractice.

In the case Perelman v. Meade, Slip copy, 2021-Ohio-4247, 2021 WL 5764280 (2021)), mentioned above, the plaintiff alleged the defendant's negligence in performing a spay procedure on her dog “Piper” resulted in another spay surgery and a nephrectomy. The Court of Appeals affirmed the lower court decision and held that since plaintiff had adopted Piper months after her surgery, she did not have a contractual relationship with defendants at the time of the surgery that would have established the existence of a duty. The court noted that “the existence of a duty is fundamental to establishing actionable negligence, without which there is no legal liability.” [*P15]

B. The veterinarian breached that duty

To prove breach of duty, the pet owner must establish that the veterinarian fell below the professional standard of care when treating the specific pet. The plaintiff has the burden of proof that the veterinarian deviated from the professional standard of care. There is not a presumption of malpractice when an animal dies or remains ill. For instance, see Loman v Freeman, 229 Ill 2d 104, 119; 321 Ill 724; 890 NE2d 446 (Illinois, 2008), where The Illinois Supreme Court held that the defendant had breached the duty he owed to the plaintiffs when he performed the unauthorized surgical procedure to plaintiffs’ racehorse that rendered the horse “lame and unsuitable for racing.”

C. That the breach was the proximate cause of the damages

The analysis does not finish by showing that the defendant’s veterinarian did in fact fail to conform his or her conduct to the required standard of care. Even if a veterinarian acted negligently, the pet owner still has to show that the harm suffered was a foreseeable consequence of the veterinarian’s negligent conduct. (In Lauderbaugh v Gellasch, Not Reported in N.E.2d, 2008 WL 5182915, 2008-Ohio-6500 (2008), the court found no proximate cause between the action of the defendant and the death of the plaintiff's dog. Based on the testimony of an expert witness, the court of appeals found that there were no facts that showed that the death of the plaintiff's horse was caused by failure to conduct the urinalysis suggested even if the defendants would have performed the urinalysis as suggested the outcome would have been the same. Therefore, veterinary negligence was not found).

D. Injury or harm result in damages to the plaintiff

Lastly, to complete the analysis, the plaintiff must show that they suffered an economic or emotional loss beyond the injury suffered by the animal. Even though it will depend on the specific state where the negligence occurred, noneconomic harm is very unlikely to be recovered. A few states, however, may consider sentimental value in accounting for actual value if the fair market value of the pet is zero. The general rule requires that the pet owner experiences and economic loss that results from the harm caused by the veterinarian’s actions. A pet owner may also be able to recover punitive damages and emotional distress when the veterinarian's conduct is intentional or grossly negligent.

To illustrate this element, in the unpublished case English v Metro Veterinary Specialists, Not Reported in S.W.3d2013 WL 3388881 (Ky. Ct App, 2013), the veterinarian performed knee surgery on the wrong knee of Plaintiff’s dog. Plaintiff failed to present expert testimony, arguing that expert witness was not necessary because the procedure was unnecessary and negligently performed, causing “Sweetie Pie” to suffer additional injury. The court of appeals ultimately affirmed the lower court’s summary judgment on the basis that even though the defendant initially performed surgery on the wrong knee, the only evidence in the record indicates that Sweetie Pie suffered no cognizable injury because surgery was also needed on the right knee. Therefore, the plaintiff had failed to set forth a prima facie case of professional negligence against the veterinarian.

If a pet owner succeeds in a malpractice suit, he will be able to recover the additional veterinary cost that had to be incurred as a result of the veterinary negligence. If the companion animal dies, then the market value or the cost of replacement is likely to be the damage award. As already mentioned, sentimental value is unlikely to be recovered due to the current legal classification of companion animals, and the difficulty in determining a monetary amount that would compensate for the emotional suffering of the pet owner. However, depending on the laws of the specific state, actual value may be recovered, which may imply a larger damage award. For example, in 2004, a jury in California awarded $39,000 in damages for veterinary malpractice of a veterinarian that resulted in the death of the plaintiff’s dog. The award did not pertain to emotional distress, loss of companionship, or punitive damages. The jury based its opinion on the special value of the dog. ("California dog owner awarded $39,000 in veterinary malpractice suit," AVMA (April 2004)).

If the plaintiff fails to establish any of the elements above, malpractice will not be found. For instance, if the elements of duty, breach, and causation are met, but the plaintiff’s dog suffers a mild injury resulting from veterinary carelessness that does not require the plaintiff to spend money on additional treatment, the last element, Plaintiff’s injury is not met and therefore the malpractice analysis is not complete. Breach of the standard of care element is usually the one where plaintiffs find more difficult to prove. Either because the pet owner does not present expert testimony, or because the testimony of the expert veterinarian is not enough to show that the defendant failed to exercise the degree of skill expected from an ordinary member of the profession. Usually, courts find the veterinarian acted like an ordinary professional would have acted under similar circumstances.

IV. Expert Testimony and Issues of Proof at Trial

Generally, to determine whether the veterinarian complied with the standard of care required, the elements set above must be established by expert testimony. The policy reason for requiring experts is that because other veterinarians can offer insightful information as to whether the defendant veterinarian followed standards and procedures and whether failing to follow such procedures resulted in the plaintiff’s harm. Lay people in the jury would normally not have this type of knowledge. Without expert testimony, the parties in the case cannot create a genuine issue of material fact.

Expert witnesses usually testify about standard veterinary procedures in the community, in the state, or the nation (depending on the law of the specific jurisdiction), such as warnings and risks associated with treatments and administration of drugs. The Gonzalez v South Tex Veterinary Assocs. case helps to illustrate how this is done. Here, the court found that the witness veterinarian had set forth the standard of care. In his expert report, the witness stated:

A reasonable Veterinarian should disclose to the client the risk of the disease being vaccinated against along with any known risk that may result from the vaccination. When the vaccination involves the risk of inherently serious harm to the animal such as a Vaccine Associated Sarcoma it is the Veterinarian's duty to inform the client of this potentially serious complication. The Veterinarian should also inform the client as to any steps they can take to minimize the risks as well as any alternative safer vaccine and any alternative to vaccination. The failure to provide and obtain informed consent is in itself an act of negligence [P*5].

Gonzalez v. South Texas Veterinary Associates, Inc., Not Reported in S.W.3d, 2013 WL 6729873 (Tex. App. Dec. 19, 2013), review denied (May 16, 2014). Another example is the Cerimele v. Vanburen, Not Reported in N.E.2d, 2013 WL 1289400 (Ohio Ct. App, 2013) case. In its opinion, the Ohio Court of Appeals stated that “expert testimony must establish the injury was more likely than not caused by the defendant's negligence.” Here, the witness testified as to the element of causation. The court held that the expert veterinarian testimony did not provide evidentiary support that the defendant had caused an injury to the plaintiff’s dog by failing to discover a bone fracture.

In a Montana case, the court held that “expert testimony is necessary to establish the applicable standard of care in an action against a veterinarian which arises from the veterinarian's professional capacity” because “matters concerning the standard of care owed by a veterinarian … are outside the common experience and knowledge of lay jurors.” Zimmerman v. Robertson, 259 Mont. 105, 108, 854 P.2d 338 (1993)

A. Geographical limitations

Not only does expert testimony shed light on the standard of care, but geographical limitations do as well. The determination of the standard of care has different geographical limitations depending on the jurisdiction. Contingent on the rules of the specific jurisdiction, the conduct of a veterinarian may be judged against the conduct of other ordinary veterinarians in a given geographic area that can be as narrow as the local community in which the veterinarian practices (locality rule), or as wide as the national standard.

This principle was taken from the common law concept of professional malpractice that originally applied only to doctors and lawyers. The geographical limitation varies from state to state. The locality rule was initially the predominant approach and the policy reason behind this rule was “to prevent unrealistic comparisons between the standards of practice in communities where resources and facilities might vastly differ. Birchfield v. Texarkana Mem'l Hosp., 747 S.W.2d 361, 366 (Tex. 1987); Gonzalez v South Tex Veterinary Assoc, Not Reported in S.W.3d, 2013 WL 6729873 (Tex. App. Dec. 19, 2013), review denied (May 16, 2014).

In the context of veterinary malpractice, some states such as California (Quigley v McClellan, 214 Cal App 4th 1276, (2013)), Minnesota (Berres v Anderson, 561 NW2d 919, 921 (Minn Ct App, 1997)), Utah (Posnien v Rogers, 533 P2d,120, 121 (Utah, 1975)), and Louisiana (Dyess v Caraway, 190 So 2d 666, 666 (La Ct App, 1966)) have determined that the standard of care is limited by a locality standard that judges the veterinarian’s conduct against the conduct of other veterinarians in the same locality.

In the case of veterinary specialists, some states have rejected community standard. For instance, see Moreland v Lowdermilk, 709 F Supp 722, 723 (W.D. La, 1989), where the court ruled that, under La. Rev. Stat. Ann. § 9:2794, the locality standard of care is inapplicable to a veterinary specialist. Rather, the standard of care is determined by the conduct of veterinarians within the involved medical specialty.

Other states have a larger scope. See Restrepo v State, 146 Misc 2d 349, 354-55; 550 NYS2d 536 (Ct Cl, 1989), where the court allowed expert testimony in a New York case from a veterinarian who practices in Delaware, Pennsylvania, and New Jersey. The court stated:

. . . Where a defendant is part of a professional community, he or she is bound by the possibly higher standards notwithstanding such association extends beyond the defendant's geographic locality or even State lines. ( Riley v Wieman, 137 AD2d 309.)... In the absence of any evidence that the level of expertise being practiced by veterinarians at these facilities is less than that existing at racetracks in Pennsylvania, Delaware, and New Jersey, we decline to apply a lesser standard. (See, Hall v Yonkers Professional Hosp., 115 AD2d 637.)”

Compare the cases above with the Iowa case below, which states a different approach. Here, the court held that the community standard is circumstantial and not conclusive in determining the standards of care:

It is for the trier of fact, and not this court, to determine whether Dr. Armbrecht's adherence to the customary "real world" practice falls below the standard of care implied in his contract despite its customary nature”

Mut Serv Cas Ins Co v Armbrecht, 142 F Supp 2d 1101, 1117 (ND Iowa, 2001) at [P*42]. Texas (Downing v Gully, PC, 915 SW2d 181, 184 (Tex App, 1996)), and North Carolina (Williams v Reynolds, 45 NC App 655, 659; 263 SE2d 853 (1980)) have adopted the standard that looks at the conduct of veterinarians in similar circumstances or communities.

To establish a negligent act or omission, expert testimony is required from a member of the veterinary medical profession with education, skill, and experience similar to those of the defendant

Simpson v Baronne Veterinary Clinic, Inc, 803 F Supp 2d 602, 607 (SD Tex, 2011)). Illinois adopted a “similar community” approach as is seen in the Loman v Freeman case:

We hold that when someone undertakes to render veterinary services, the common law imposes upon that person a duty to use the same skill and knowledge normally possessed by veterinarians in good standing in similar communities unless that person represented, he or she had greater or less skill or knowledge.

229 Ill. 2d 104, 890 N.E.2d 446, 454 (2008). The scope of the geographical limitation varies from state to state. This limitation is relevant because it narrows down who can be an expert witness in a malpractice case. Note that even though the community standard was put in place so the practice of veterinarians from smaller communities would not be judged against the practice of veterinarians from more urban areas, with potentially more access to education, information, technology, and resources, under this approach plaintiffs may encounter difficulties in finding other veterinarians that are willing to testify against the defendant. This is because the smaller the locality is, the more likely veterinarians will know each other. This approach may ultimately hurt plaintiffs by getting in the way of finding an expert witness to prove their case.

B. No expert needed: the use of res ipsa loquitur

The doctrine of “the thing speaks for itself” applies as an exception when the veterinarian's negligent action or inaction is so apparent that veterinary expert testimony is not necessary. A prima facie case for malpractice can be established without expert testimony if the conduct of the veterinarian is so wrong and obvious that it lends itself to an inference of malpractice from the injury or the facts of the case. This allows the jury to make an informed decision as to whether malpractice took place. "Where the 'very nature of the acts complained of bespeaks improper treatment and malpractice' a prima facie case may be established without the necessity of offering expert evidence to that effect. Restrepo v State, 146 Misc 2d 349, 355; 550 NYS2d 536 (Ct Cl, 1989)).

Citing the case of Linnear v. Centerpoint Energy Entex/Reliant Energy, 2006–3030 (La.9/5/07), 966 So.2d 36, the appellate court in Milke v. Ratcliff Animal Hosp., Inc. ex rel. Ratcliff lays out the elements of this legal principle:

The doctrine, meaning "the thing speaks for itself," permits the inference of negligence on the part of the defendant from the circumstances surrounding the injury . . . [T]he doctrine applies when three criteria are met. First, the injury is the kind that ordinarily does not occur in the absence of negligence. While the plaintiff does not have to eliminate all other possible causes, he must present evidence indicating at least a probability that the accident would not have occurred absent negligence. Second, the evidence must sufficiently eliminate other more probable causes of the injury, such as the conduct of the plaintiff or a third person. The circumstances must warrant an inference of negligence. Third, the negligence of the defendant must fall within the scope of his duty to plaintiff. This may, but not necessarily, be proved in instances where the defendant had exclusive control of the thing that caused the injury.

120 So. 3d 343, 353-354 (La. App. 2 Cir. 7/10/13). In this case, the court affirmed the summary judgment for the veterinarian and held that the plaintiff had failed to show by expert testimony that the veterinarian’s negligence during the postoperative period had caused the plaintiff’s dog’s death. The doctrine of res ipsa loquitur did not apply since the evidence did not establish that the dog's death was an injury of the kind which did not ordinarily occur in the absence of negligence. While rare, this doctrine recognizes that there might be circumstances in which negligent treatment of diagnosis is so obvious that anyone in the community could identify it. 

C. Standard for specialists

Veterinary specialists, as defined by The American Veterinary Medical Association, are veterinarians who have completed additional training in a specific area of veterinary medicine and have passed an examination that evaluates their knowledge and skills in that specialty area. (AVMA, What do board-certified veterinary specialists do?)

The standard of care of veterinarians holding themselves out to the public as a specialist in a particular area of veterinary medicine is different from the standard of care for general veterinary practitioners. This concept is taken from cases involving other professionals such as doctors that specialize in a particular area. A veterinary specialist is subject to a higher standard of care than general veterinary practitioners when they diagnose and treat an animal in the particular area in which they specialize. For example, for the standard of care in medical cases, "[a] specialist 'is expected to exercise that degree of skill, learning, and care normally possessed and exercised by the average physician who devotes special study and attention to the diagnosis and treatment of diseases within the specialty.'" Cordes v United States, F Supp 3d, WD Pa, (2015).

Compare this case with the Moreland v Lowdermilk. Here, the court states that under Louisiana law, the standards governing medical malpractice actions apply to veterinary malpractice cases. This case sets forth the three-part prong for plaintiffs to establish veterinary malpractice:

  1. Where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by [veterinarians]… within the involved medical specialty.
  2. That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and
  3. That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

709 F Supp 722, 723 (WD La, 1989). Since specialists have superior knowledge, skill, and training than other practitioners, they are held to a higher standard of care in the exercise of their professional specialty. The AVMA recognizes 22 specialty organizations and 41 distinct specialties. Some of the most common veterinary specialties include dermatology, cardiology, anesthesia, behavior, radiology, ophthalmology, surgery, and dentistry.

In addition, veterinarians that identify themselves as specialists without being certified by an AVMA accredited organization may be subject to state discipline. See AVMA Principles of veterinary medical ethics. Principle 3.6 establishes that “It is unethical for veterinarians to identify themselves as members of an AVMA-recognized specialty organization if such certification has not been awarded and maintained. Only those veterinarians who have been certified by an AVMA-recognized veterinary specialty organization should refer to themselves as specialists.”

Being a specialist affects a malpractice case indeed. A specialist's conduct is not measured against the conduct of other veterinarian general practitioners, but rather against their fellow specialists. It is a narrower standard.

V. Damages: Limitation to Meaningful Recovery

Assuming the previous elements have been met and supported by expert witness, a more practical limitation emerges that stifles most veterinary malpractice actions: damages. In veterinary malpractice, compensatory damages are the remedy awarded to the plaintiff animal owner when their animal suffers injury or death because of negligence during veterinary treatment. Damages available in malpractice cases vary depending on the state. However, courts have been even more rigid in increasing the award of damages in veterinary malpractice cases than in other tort cases involving harm to animals.

To this day, the majority view continues to recognize only economic losses, which translate into the commercial value or replacement cost of the animal. This is mainly because, traditionally, animals are considered personal property and in most states noneconomic damages are not available for harm or destruction of personal property. This is reflected in very low monetary compensation. Noneconomic damages such as emotional distress, pain and suffering, and loss of companionship become relevant in the context of harm involving companion animals such as dogs and cats.

The relationship between humans and their animal companions has significantly changed in the past decades. Dogs, cats, and other animals play a role that resembles children in the family. Companion animals enhance the lives of their human companions and provide them with well-being and purpose. Studies have shown how humans are highly impacted when their nonhuman family members suffer injury or death (See Walsh, Froma. (2009). Human-Animal Bonds I: The Relational Significance of Companion Animals. Family process. 48. 462-80. 10.1111/j.1545-5300.2009.01296.x.). Today, it is more common for companion animals to take part in family photos, events, and travel. It is not unusual for employees to request time off when their companion animals are sick, and for families to plan their living arrangements around the comfort and well-being of their companion animals. This view of companion animals is yet to be reflected in the legal system, particularly in malpractice cases. Though noneconomic damages have been awarded in a few states, it is still the minority approach.

There are a few states that have laws allowing damages beyond fair market value such as Tennessee, Maryland, and Illinois. But in the case of Tennessee, for example, noneconomic damages allowed by statute are specifically barred in veterinary malpractice cases. As the bond between humans and their companion animals continues to get stronger, some pet owners are willing to spend larger amounts of money to save their family pets’ lives. This also reflects higher expectations of veterinary care.

The development of damages in veterinary malpractice in the last decade has been rather slow. No cases have moved past the appellate court level and no court has awarded noneconomic damages. Pet owner plaintiffs usually lose under this cause of action because they usually fail to establish by a preponderance of the evidence that the veterinarian was negligent and that such negligence was the proximate cause of plaintiff’s harm. Courts usually find that plaintiffs failed to provide expert testimony or that the testimony of the witness veterinarian was not enough to establish malpractice. While judicial recognition of damages is limited, it is helpful to examine the availability of different types of damages in veterinary mal actions. Read the full discussion on pet damages.

A. Economic damages

Economic damages are the remedy traditionally available in malpractice claims. Under this type of damages, companion animal owners are compensated for their financial loss when the animal is injured or dies because of veterinary negligence. Like any other type of property, the economic value of a companion animal is the equivalent to their fair market value or replacement cost, meaning, what an animal with similar characteristics would cost, in the case of injury, the measure of damages is the cost of veterinary treatment (cost of repair for an inanimate object) that do not exceed the replacement cost.

Two examples from New York and Ohio illustrate how courts have approached the recovery of economic damages. In Astarita v. Croton Animal Hosp., the court observed that "[w]here the animal has a market value, the owner will be entitled to the market value at the time of the loss or the difference in market value before and after an injury. Factors affecting the market value of an animal include the animal's age, health, and special traits or characteristics of value. Slip Copy, No. SC-313-16, 2016 WL 5235190 (N.Y.City Ct. Sep. 19, 2016) at 8. Similarly, an Ohio appellate court stated that it "agree[s] with and acknowledge that pets do not have the same characteristics as other forms of personal property, such as a table or sofa which are disposable and replaceable at our convenience. Accordingly, additional factors should be considered in fashioning an appropriate economic damages award due to loss or injury. Such factors include fair market value, age of the pet, pedigree, training, breeding income, recommendation of the treating veterinarian, circumstances of the injury, and anticipated recovery. The overriding consideration is the reasonableness of the expenses and is fact-specific" (Citing Irwin v. Degtiarov, 8 N.E.3d at 301 (Mass.App. 2014)). Rego v Madalinski,  63 N.E.3d 190, 192 (Ohio Ct. App., 2016).

Economic damages may be appropriate when an animal holds a significant commercial value. That is the case with horses, for example. Horse owners are encouraged to seek compensation in court as there is a possibility as they may recover the value invested in acquiring the horse. This is probably the reason why many veterinary malpractice cases pertain to the injury or death of horses during veterinary treatment. A problem arises in the context of companion animals. Some companion animals may hold some commercial value. Examples of such animals include dogs with some particular training and companion animals used for breeding or show purposes. However, pet owners share their lives with companion animals for companionship and enjoyment and the majority adopt mixed-breed animals. In other words, most companion animals in the U.S. are valued emotionally rather than financially.

When the value of a companion animal is not discernable, some states have expanded the recovery of economic damages by implementing a more flexible standard to include reasonable veterinary treatment and what some courts have called the "actual value" of the pet to the owner or "intrinsic value" (See Mitchell v. Heinrichs, 27 P.3d 309 (2001); Burgess v. Shampooch Pet Industries Inc,131 P.3d 1248 (Kan.App., 2006); Leith v. Frost, 899 N.E.2d 635 (Ill.App. 4 Dist.,2008); and Strickland v. Medlen, 397 S.W.3d 184 (Tex. 2013)). This approach takes into account other economic factors such as purchase price, reasonable replacement costs, including investments such as immunizations, neutering, training, breeding potential, special training, any particular economic utility, as well as veterinary expenses related to the negligent injury. It does not include emotional damages.

B. Sentimental/emotional damages

Compensatory damages are not just economic. Some losses are noneconomic in nature that are recoverable to compensate the plaintiff. In the case of companion animals, pet owners may suffer pain and suffering, emotional distress, and/or loss of companionship. In the context of veterinary malpractice, courts have only recognized economic loss and have profusely refused to award compensation for emotional damages. There are limited exceptions. An appellate court in Arkansas in 2002 held that compensation for mental anguish was allowed for the killing of a dog while under the care of the defendant veterinarian (McAdams v Faulk, SW3d; 2002 Ark. App. (Ct App, 2002)). A Florida court of appeals in 1978 held that mental pain and suffering of a pet owner can be considered by the jury for the assessment of damages (Knowles Animal Hosp. v. Wills, 360 So.2d 37 (Fla.App.,1978)).

The veterinary field has strongly opposed the award of noneconomic damages in malpractice cases. The American Veterinary Medical Association’s main argument is that awarding noneconomic damages would ultimately “hurt pets in the long run” as the cost of veterinary care would raise in anticipation for veterinarians to be able to pay for future litigation and the cost increase of malpractice insurance rates, which would ultimately make it more difficult for people to afford veterinary care as this increased cost would ultimately be passed along to pet owners (See AVMA, How emotion-based, non-economic damages can hurt you and your pet). Additionally, the AVMA states that allowing for noneconomic damages would put veterinarians in fear of litigation and, therefore, they would be more likely to deliver defensive veterinary care or even abandon the veterinary practice. Again, this would ultimately be reflected in higher costs of veterinary services.

Many veterinary clinics acknowledge and even encourage the status of companion animals within the family. For instance, in advertising their services, veterinarians often use the word “family members'' and add the owner’s last name next to the animal's name on records and prescribed medicine labels. The AVMA even calls veterinarians the “other family doctors.” The veterinary field daily benefits from the existing bond between humans and animal companions. Statistics show that pet owners are more willing than ever to spend more money on diagnoses and treatments to keep their companion animals happy and healthy. Additionally, meeting the elements of malpractice is usually an ambitious endeavor. Most actions undertaken during veterinary treatment are considered to be within the boundaries of the standard of care (See Harriet Meyers, Current Trends in Pet Spending 2021-2022, American Kennel Club (2021)). Given that veterinarians and the pet industry gain advantage touting pets as family, it is only fair that in the cases when a court finds veterinary conduct to fall below this high standard, pet owners are allowed to recover for the emotional damage that arises from the veterinarian’s negligent conduct.

The type and scope of noneconomic damages will vary depending on the law of a given state. McMahon v. Craig, 176 Cal.App.4th 1502, 97 Cal.Rptr.3d 555 (Cal.App. 4 Dist., 2009) provides the general rule in the award of damages in veterinary malpractice cases for California. The court held that emotional distress is not available for malpractice. Here, the court stated that "it would be incongruous to impose a duty on a veterinarian to avoid causing emotional distress to the owner of the animal being treated, while not imposing such a duty on a doctor to the parents of a child receiving treatment." 

A very small number of states will allow recovery of noneconomic damages for harm or destruction of property. In the Hawaii case Campbell v. Animal Quarantine Station, 632 P.2d 1066 (Hawaii, 1981), the court allowed the plaintiff to recover mental distress that arose from the death of plaintiff’s dog while under the care of the defendant. In 1978, a Florida court allowed recovery for intentional or negligent infliction of emotional distress in a case involving veterinarian and animal hospital:

[w]e hold that the trial court did not err by including for consideration of the jury the element of the mental pain and suffering of the plaintiff-owners of the dog. Additionally, on the evidence the jury could, and no doubt did view the neglectful conduct which resulted in the burn injury suffered by the dog to have been of a character amounting to great indifference to the property of the plaintiffs, such as to justify the jury award.

Knowles Animal Hosp v Wills, 360 So 2d 37, 38-39 (Fla Dist Ct App, 1978). Finally, only one court has allowed recovery for loss of companionship. The Civil Court of the City of New York in Brousseau v. Rosenthal, 443 N.Y.S.2d 285 (N.Y.City Civ.Ct., 1980) allowed recovery of loss of companionship. However, these cases, which are now over forty years old, remain the exception rather than the rule. Despite this fact, pet owners continue to be at the forefront of litigation, claiming emotional damages arise not from property damage but from the emotional injury suffered from harm done to their companion animal, and further arguing that their animals have a status superior to property that resembles more of a family member.

C. Punitive Damages

In addition to compensatory damages, a plaintiff can be awarded punitive or exemplary damages. In most states, these types of damages are available when an animal is maliciously killed or injured by a person other than the owner. Punitive damages are awarded when the veterinarian's conduct is malicious, willful, wanton, or if the veterinarian acts with reckless disregard for the owner’s rights (see Carroll v. Rock, 469 S.E.2d 391 (Ga. App., 1996)). Punitive damages are usually substantial as their primary purpose is not to compensate, but rather to punish a defendant, deter the defendant from repeating his or her wrongful act, and prevent others from engaging in similar conduct (Victor E. Schwartz, Emily J. Laird, Non-Economic Damages in Pet Litigation: The Serious Need To Preserve a Rational Rule, Vol. 33: 227. Pepperdine L. R. 231. (2006)).

While it is an avenue in limited circumstances, appellate courts rarely entertain punitive damages in veterinary malpractice cases (See the unpublished case McAdams v. Faulk, Not Reported in S.W.3d, 2002 WL 700956 (Ark.App. 2002)). This is because veterinarian conduct usually is usually considered negligent and therefore, it is unlikely to rise to the level of intentional infliction of emotional distress (IIED) or punitive damages.

VI. Other Available Legal Causes of Action When Malpractice Cannot be Proven

Not all mistakes that happen during veterinary treatment or at a veterinary clinic give rise to veterinary malpractice. Some of them occur outside of diagnosis and treatment. Additionally, suing a veterinarian for professional malpractice can be costly and time-intensive. Attorney fees, expert witnesses, and other litigation costs can be significant against the possibility of recovery of the fair market value and veterinary expenses.

Even if it is difficult for plaintiffs to show that a veterinarian acted in line with the veterinary standard of care required, it does not mean pet owners are without legal recourse when their animals are harmed while in the care of veterinarians or veterinary facilities. Animal owners have a number of other litigation alternatives available under tort and contract law when an animal suffers death or injury in the hands of a veterinarian. Moreover, plaintiffs often pursue some or all these causes of action together.

A. Negligence

Negligence is a cause of action that can be utilized when the animal is under the care of the veterinarian or the veterinary staff and suffers harm that is not a result of veterinary treatment. Ordinary negligence applies to anyone that harms someone or someone’s property because of their careless actions. The standard of care of negligence requires that the defendant acts as a reasonably prudent person would under the same or similar circumstances. This obviates the need for expert witnesses and the sometimes-complex procedural requirements in states that have used medical malpractice requirements for veterinary cases.

Negligence is also available in those states that do not apply the principles of professional malpractice to veterinarians. Pet owners can use the negligence principles against veterinary professionals.

Examples of simple negligence include when the animal is harmed in a boarding facility, when a human or an animal is attacked by another animal at the veterinary facility, or when the animal is harmed during transportation. See the example of Hewitt v Palmer Veterinary Clinic, PC, 35 NY3d 541 (2020), where the plaintiff was bitten by someone else’s dog at the veterinary clinic. In this case, the court found that the defendant was negligent and stated:

[i]t is undisputed that Palmer owed a duty of care to plaintiff—a client in its waiting room. Palmer is a veterinary clinic, whose agents have specialized knowledge relating to animal behavior and the treatment of animals who may be ill, injured, in pain, or otherwise distressed…under the circumstances presented here, a negligence claim may lie despite Palmer's lack of notice of Vanilla's vicious propensities.

35 NY3d 541, 548 (2020). In another example, the appellate division of the Superior Court of New Jersey found that the plaintiff had sufficiently stated a claim of negligence of the veterinarian. Quesada v. Compassion First Pet Hosps. & Red Bank Veterinary Hosp., No. A-1226-19, 2021 WL 1235136 (N.J. Super. Ct. App. Div. Apr. 1, 2021). In this case, the plaintiff was extremely affected by the death of his cat “Amor," who had been euthanized after being diagnosed with heart failure disease and saddle thrombus. After euthanization, the veterinarian informed the plaintiff that they had to take a brain sample because the cat had bitten one of the nurses and they needed to rule out rabies. Plaintiff informed the veterinarian of his wish to display Amor's body for viewing prior to cremation in two different instances. Neither the rabies sample procedure or alternative procedures were explained to the plaintiff. At the body’s viewing, the plaintiff discovered that his cat had been decapitated. Plaintiff became extremely emotional after discovering his cat’s head had been disposed of as medical waste. The plaintiff suffered severe mental health issues after seeing the headless body of his cat. The court stated that the plaintiff’s “emotional reaction combined with the fact that defendant was twice on notice that plaintiff intended to have a viewing of his cat's body prior to cremation established that defendants owed plaintiff a duty.” Defendants breached this duty by being on notice of plaintiff emotional distress and failing to properly inform plaintiff of the typical procedure of decapitating the cat for rabies testing, inform him of alternative testing procedures, and failing to request that the cat's head be returned after decapitation and prior to the showing.

B. Trespass to chattels and conversion

Trespass to chattel and conversion are intentional torts available when there is an interference with the plaintiff's personal property. In the case of veterinarians, this cause of action may be available in those states that do not apply professional malpractice principles to the veterinary profession such as Washington. In the Sherman v Kissinger, 146 Wash App 855, 860; 195 P3d 539 (2008) case, the court held that statutes regulating medical malpractice did not apply to veterinarians. For that reason, those statutes did not bar plaintiff’s claims for breach of fiduciary duty, negligent misrepresentation, conversion and trespass to chattels, and breach of bailment contract.

Conversion is an intentional tort in that the defendant must have intended "to exercise a dominion or control over the goods which is, in fact, inconsistent with the plaintiff's rights." However, the defendant need not knowingly or intentionally act wrongfully for a conversion to occur. LaPlace v Briere, 404 NJ Super 585, 595; 962 A2d 1139 (Super Ct App Div, 2009). The degree of interference in conversion is greater than its counterpart trespass to chattels. When a defendant is liable for conversion, like in LaPlace, the animal is either killed or severely injured, to the point that their health cannot be fully restored. This renders the defendant liable for the full value of the animal.

Some states will, however, allow a claim for trespass to chattel or conversion, even if there is a contractual relationship with the veterinarian such as when he or she performs an authorized procedure that results in injury or death of the animal. To illustrate this approach, see Loman v Freeman, where the plaintiff horse owners sued a veterinarian for negligence and conversion for performing an unauthorized surgery on their horse that rendered him unsuited for racing. In this case, this Illinois court of appeals held that “[c]ontract or no contract, if one cuts, carves, lacerates, incises, or otherwise alters someone else's property except as authorized by that person, one commits a classic tort: either trespass to chattels or conversion, depending on the extent of the alteration.” 375 Ill App 3d 445, 446; 314 Ill Dec 446; 874 NE2d 542 (2006).

Trespass to chattels is available when there is an intentional interference with the possession of personal property that has proximately caused injury to the plaintiff (see Levy v Only Cremations for Pets, Inc, 57 Cal App 5th 203, 216; 271 Cal Rptr 3d 250 (2020)). California for instance has allowed recovery of noneconomic damages under this cause of action (see Plotnik v. Meihaus, 208 Cal. App.4th 1590, (2012)). The interference in this cause of action does not amount to the same degree of interference as conversion. Here, the animal is not killed, but rather just injured. Therefore, the defendant is liable just for the extent of the damage caused.

It is important to note that trespass to chattels is generally unavailable if the plaintiff consents to veterinary treatment, even if the animal suffers harm resulting from wrongful diagnosis or treatment. In the unpublished case Kestenbaum v. Florez, Not Reported in Pac. Rptr., 2016 WL 3264118 (Ariz. Ct. App. June 14, 2016), the court affirmed partial summary judgment on the trespass to chattel claims. The court stated that the plaintiff had clearly consented to veterinary treatments by continuing to take the dogs to the veterinarian and, therefore, the lower court did not err in ruling partially in favor of the defendant.

In cases involving veterinarians, conversion and trespass to chattels may be difficult to establish as usually veterinarians are not found to intentionally interfere with the ownership of the animal. Furthermore, the owner of an animal usually consents to or gives permission to veterinary treatment. Plaintiff needs to establish the defendant's intent to interfere with the plaintiff’s rights over the animal and the lack of consent on the part of the plaintiff in order to be able to recover under these causes of action. Injuring or killing an animal is not enough. Nevertheless, depending on the state and the facts of the case, these causes of action may or may not be available.

C. Intentional and negligent infliction of emotional distress

These causes of action focus on the emotional injury suffered by the owner. Due to the nature and elements of these causes of actions, there will most likely be unsuccessful in in cases involving veterinarians (for more, see the full discussion on pet damages).

Intentional infliction of emotional distress (IIED) is an intentional tort. It requires the defendant to have malicious intent to inflict emotional distress on the plaintiff. Additionally, it requires defendant’s conduct to be outrageous and extreme, and that the plaintiff suffers severe emotional distress. IIED requires the veterinarian to harm the animal with the intention of inflicting emotional distress upon the owner. It is not enough to have the intention to hurt the animal, the injury has to be inflicted with the purpose to cause harm to the owner as well. Moreover, some states, such as Pennsylvania (Miller v. Peraino, 626 A.2d 637, 640, Pa. Super. (1993)) do not allow this type of claim in cases involving harm suffered by animals while under the care of veterinarians.

Likewise, cases asserting negligent infliction of emotional distress (NIED) resulting from veterinary malpractice are oftentimes dismissed before they go to trial. This is a narrow cause of action involving a negligence tort that is rarely successful in animal cases. Courts usually hold that this type of claim is not available in animal cases and animal owners do not meet the elements for bystander, which would require the pet owner to witness the injury and that the animal is considered to be a close relative of the pet owner.

D. Breach of bailment

Breach of bailment is a cause of action outside of tort law. A bailment is the temporary transfer of possession of personal property for a specific purpose. The person delivering the property is the bailor and the person receiving the property is the bailee. The bailee is liable for damage or destruction of the personal property while it is in their possession. In bailment contracts involving animals, animals are under the care of a third party for a specific purpose. Under this contract, the bailee is expected to return the animal to its bailor owner once the purpose of the bailment is fulfilled. In the case of veterinarians, if the animal stays at the veterinary facility for the purpose of treatment, boarding, or grooming services, then the plaintiff can argue that a bailment contract exists. If the animal is injured or harmed while in possession of the veterinarian, unlike in veterinary malpractice cases, the veterinarian has the burden of proving that they acted in accordance with the standard of care or otherwise explain why the animal suffered harm. This is a property standard within the rules of bailment that differs from the professional duty of care required in malpractice cases. Once the bailee explains what happens to the animal, the bailor must prove a claim of trespass to chattels or conversion (see LaPlace v Briere, 404 NJ Super 585, 590; 962 A2d 1139 (2009)).

Going back to Quesada v. Compassion First Pet Hosps. & Red Bank Veterinary Hosp., No. A-1226-19, 2021 WL 1235136 (N.J. Super. Ct. App. Div. Apr. 1, 2021), the court held that the plaintiff had adequately pleaded a claim of bailment. "Where the subject of a bailment is either not returned, returned damaged to the bailor, or is lost, 'the bailor may be able to recover under theories of either conversion or negligence.' . . . After a plaintiff establishes that a bailor-bailee relationship exists and that there was a loss of goods while the goods were in the bailee's possession, 'a presumption of negligence arises, requiring the bailee to come forward with evidence to show that the loss did not occur through its negligence or that it exercised due care.'" Id at 7.

In some states, however, bailment and veterinary malpractice are mutually exclusive. The public policy reason is that veterinarians are part of a professional discipline and that in order to recover damages for the injury or the death to an animal entrusted to a veterinarian's care, a plaintiff must prove professional negligence instead of a bailment arrangement. Price v. Brown, 680 A.2d 1149 (Pa. 1996).

Anzalone v Kragness, 826 N.E.2d 472 (Ill. 2005) illustrates how a defendant veterinarian can be found liable for more than one cause of action. Here, the appellate court held that the complaint sufficiently alleged a prima facie cause of action in both general negligence and bailment. Plaintiff sued the defendant veterinarian and animal hospital for the killing of her cat by a dog while being boarded at the animal hospital.

Even though, in most situations, plaintiffs will not be allowed to state a claim for veterinary malpractice and breach of bailment at the same time, as long as companion animals are considered property by the law, this cause of action remains available when a companion animal is harmed while under the care of a veterinarian for purposes other than veterinary treatment.

VII. Alternatives to Veterinary Malpractice Lawsuits

Pet owners can also opt for other alternatives that do not require the actioning of the legal system. These alternatives to litigation are particularly important in cases involving companion animals because they do not require large amounts of time and money and pet owners can still hold veterinarians accountable for their negligent actions.

A. Reporting negligence to the veterinarian’s state licensing board

As veterinary malpractice is not the most cost-effective cause of action to undertake, some animal owners opt for reporting the veterinarians they believe acted negligently to their state veterinary licensing board to hold them accountable. Animal owners can file a grievance with the state licensing board or with an organization to which the veterinarian is a member requesting the suspension or revocation of their veterinary license. The AVMA has guidelines that establish that all veterinarians are expected to adhere to a progressive code of ethical conduct known as the Principles of Veterinary Medical Ethics (PVME).

Rules of professional conduct are dictated by the state where the veterinarian practices, which includes the standards for suspension and revocation of the veterinary license.

Some states specifically establish what types of conduct would give rise to a suspension or revocation of a professional license, and others give the licensing board the authority to regulate the profession.

B. Pursuing the malpractice case in a small claims court

Small claims courts handle civil cases, for which amount in controversy does not exceed the monetary limit in the given state. For instance, the amount in controversy in Michigan cannot exceed $6,500 (MCL 600.8401). It is $8,000 in Florida (Fla. Sm. Cl. R. 7.010), and $10,000 for individuals in California (Cal Civ Proc Code 116.221). This type of lawsuit is convenient for those animal owners that wish to proceed pro se, as some states may or may not allow plaintiffs to be represented by a lawyer. Even though a lawyer is not required, the plaintiff’s burden remains the same. As all of the elements set above still need to be established. This type of lawsuit is not convenient for those pet owners who seek larger recovery. Before filing a small claim lawsuit, the plaintiff should educate themselves on the specific state/county law for these types of cases, as the process may vary from state to state.

C. Mediation

This method of dispute resolution method is an alternative to litigation. A neutral third-party called a mediator helps the parties to come to a mutually agreed-upon settlement. Mediation allows parties to explain their point of view. It is a speedier process in a less compelling environment, where the mediator acts as a facilitator by encouraging the parties to settle the dispute partially or fully. Mediation can be voluntary as an alternative to litigation, or it can even be ordered by a judge.

It is stressful when an animal, particularly a companion animal, suffers harm at the hands of a veterinarian. Mediation is a good alternative to litigation where animal owners can work out a settlement with the veterinarian, but also get some emotional resolution, as the nature of mediation allows for more personal interactions between the parties and the needs of each party can be expressed and taken into account.

VIII. Affirmative Defenses to Veterinary Malpractice

Veterinarians have several affirmative defenses that can be raised even if the plaintiff shows malpractice took place. Depending on the facts of the specific claim, two or more defenses may be asserted at the same time.

A. Negation of any of the required elements

In order to win a veterinary malpractice lawsuit, the plaintiff needs to prove every one of the elements of the claim. Veterinarians can attack any of the elements of the malpractice to defeat this claim. For example, the veterinarian can show that she did not agree to provide treatment to the animal and therefore, no duty of care existed. Or, if she acted as a veterinarian with similar knowledge and skill would have acted, then no breach of the standard of care took place. The veterinarian can defeat the claim by showing that harm would have occurred regardless of her mistake or that, regardless of meeting all the elements, the plaintiff did not suffer economic loss/damages.

B. Filing a claim outside of the statute of limitations

Claims must be brought up in court within the statute of limitations established for that cause of action in the particular state. Statutes of limitations are either set by statute or by common law. Veterinarians can utilize the statute of limitations as a defense when the time within which legal action can be pursued has passed without the legal action being initiated.

For example, in Scharer v. San Luis Rey Equine Hosp., Inc. 147 Cal.Rptr.3d 921 (Cal.App. 4 Dist, 2012), a horse owner sued veterinarians and the equine hospital for professional malpractice after the horse was euthanized less than two months after surgery to remove the horse's ovaries. The Superior Court granted summary judgment for defendants based on the one-year statute of limitations. The Court of Appeal affirmed, holding that equitable tolling did not apply because the plaintiff was not prevented from pursuing her claim in a timely manner by the defendants or the court. A provision in the Medical Injury Compensation Reform Act extending the statute of limitations by 90 days did not apply absent a claim for personal injury or wrongful death to a person.

Another example is the Reicksview Farms v Kiehne, 541 F Supp 3d 935, 936 (2021). Here, the court held that claims arising out of veterinary malpractice are subject to the five-year statute of limitations pursuant to Iowa Code § 614.1(4) and that claims based on veterinary malpractice did not fall within the exception created in the two-year statute of limitations for medical malpractice claims under Iowa Code § 614.1(9).

C. Informed consent

The veterinarian has the duty to disclose all relevant information regarding the treatment and risks in a way that allows the pet owner to understand and provide informed consent before the veterinarian undertakes treatment.

For a veterinarian to use informed consent as a defense, it needs to be shown that the pet owner agreed to the treatment upon disclosure of all the material information and the risks involved with it. In the absence of such consent, a veterinarian can argue that there is not a causal relationship between the lack of informed consent and the damages alleged by the pet owner. The person giving informed consent for veterinary treatment is usually the animal owner. However, an agent providing care for the animal may consent to treatment as well (Ethics in Veterinary Practice: Balancing Conflicting Interests-B. Kipperman, B Rollin, eds, Chapter 5 – Veterinary Ethics and the Law, David Favre and Carol Gray (to be published in 2022)).

The case of Henry v Zurich American Ins Co, 107 So. 3d 874 (La. App. 3 Cir. 2/6/13), illustrates proximate cause and agency. Here, the court affirmed the trial court decision in favor of the veterinarian and the horse trainer after the horse died as a result of a surgical procedure consented to by the trainer rather than the owner. Plaintiff sought damages based on lack of informed consent to the surgery. The trial court found that the plaintiff had failed to show that the veterinarian’s actions had fallen below the standard of care and that he would not have consented to the procedure had he been given an opportunity to consent. The court stated:

. . . [t]here are two aspects to the proof of causation and the lack of informed consent. First, the plaintiff must prove, as in any other tort action, that the defendant's breach of duty was a cause and fact of the claimed damages or, viewed conversely, that the defendant's proper performance of his or her duty would have prevented the damages; and secondly, the plaintiff must further prove that a reasonable patient in the plaintiff's position would not have consented to the treatment or procedure had the material information and risk been disclosed.

Id. at 882. In the more recent case Quesada v. Compassion First Pet Hosps. & Red Bank Veterinary Hosp., No. A-1226-19, 2021 WL 1235136 (N.J. Super. Ct. App. Div. Apr. 1, 2021), amongst other claims discussed in Section VI(A) supra, the plaintiff alleged that the veterinarian had failed to obtain informed consent to decapitate his cat in order to test for rabies, failed to inform plaintiff of the alternative procedures that could have been utilized, and failed to inform plaintiff that his cat's head had been removed and not returned for the viewing at Hamilton Pet Meadow. The court held that the plaintiff had pleaded that defendant's actions caused the harm alleged, resulting in plaintiff’s damages. Here, the appellate court reversed the dismissal and remanded for further proceedings. Amongst other findings, the court held that defendants breached their duty by being on notice of plaintiff emotional distress and failing to properly inform plaintiff of the typical procedure of decapitating the cat for rabies testing, inform him of alternative testing procedures, and failing to request that the cat's head be returned after decapitation and prior to the showing.

Factors in determining if consent has been informed include whether veterinarians must disclose relevant information such as diagnosis and prognosis, right to refuse to take part in teaching and/or research, common and serious risks, option of treatment, and financial aspects of treatment. (Ethics in Veterinary Practice: Balancing Conflicting Interests-B. Kipperman, B Rollin, eds, Chapter 5 – Veterinary Ethics and the Law, David Favre and Carol Gray (to be published in 2022)).

D. Contributory and comparative negligence

In those states that follow the comparative negligence rule, veterinarians can raise an affirmative defense to malpractice when the plaintiff pet owner has contributed to the harm suffered by the animal and “neutralize the third element by showing either that the harm would have occurred regardless of the veterinarian's actions or that there was another reason for the injury” (Rebecca J. Huss, Valuation in Veterinary Malpractice, 35 Loy. U. Chi. L.J. 479 (2004)). Under this cause of action, both the pet owner and the veterinarian have contributed to the harm suffered and apportioned their level of fault. Even though it does not release the defendant from liability, the veterinarian can show that the plaintiff was responsible for part of the harm suffered as well. When this cause of action is raised, the jury apportions the amount of damages after reducing the amount that reflects the percentage of fault. Examples of when a pet owner can be contributorily negligent are when the pet owner does not follow veterinary instructions for treatment, recovery, or diagnosis, or when plaintiff’s failure to disclose the animal’s history or current medications contribute to the injury or death of the animal. In those cases, the pet owner can be found fully or partially responsible.

Contributory negligence has been replaced for its counterpart comparative negligence in most jurisdictions. However, veterinarians can use it as a defense in those states that still follow this common law rule. When contributory negligence is available, the pet owner is barred from recovery if she had any fault in bringing about the harm to the animal. This is true even when the veterinarian’s negligence is more serious.

E. Good Samaritan laws

A number of states have "Good Samaritan" laws that shield veterinarians from veterinary malpractice liability in emergencies when in voluntarily providing emergency care, a veterinarian does not comply with the standard of care required. By statute, the veterinarian is not liable for damages, unless the harm results from intentional or grossly negligent conduct.
For example, the Pennsylvania Veterinary Immunity Act was cited in Hoffa v Bimes, 2008 Pa Super 181,(2008):

§ 8331.1. Veterinary good Samaritan civil immunity: a) General rule.-- Any individual licensed to practice veterinary medicine who, in good faith, renders emergency care to an animal which such individual has discovered at the scene of an accident or emergency or which has immediately before the rendering of such care been brought to such individual's attention at or from the scene of an accident or emergency shall not be liable for any civil damages as a result of any acts or omissions by such person in the rendering of the emergency care, except any acts or omissions intentionally designed to harm, or any grossly negligent acts or omissions which result in harm to the animal.

While this would only apply in limited circumstances and not in commercial interactions with clients, it may be raised as a defense in emergency care situations.

F. Sovereign immunity

The doctrine of sovereign or governmental immunity is an affirmative defense for those veterinarians that work for the government and negligently harm an animal while acting within the scope of governmental employment. Generally speaking, governmental immunity establishes that the state government is immune from tort suits. Therefore, the veterinarian, as a government employee may be released from liability. This doctrine applies to federal and state governments and it can be waived as well.

Veterinarians are not, however, protected by this doctrine just for the sake of working for the government. Additionally, some states do not apply this doctrine in veterinary malpractice cases. For instance, in Loman v. Freeman, 890 NE2d 446 (Illinois, 2008), the court held that the veterinarian was not protected by the sovereign immunity doctrine even though he was a faculty member of a state university. The court stated that the duty of the veterinarian “arose independently of his employment by the state and he was not performing a uniquely governmental function when he treated the racehorse."

As explained in the unpublished case of Kutyba v Watts, Not Reported in S.W. Rptr., 2019 WL 1187427 (Tex. App. Mar. 13, 2019), the court stated found that "'[s]overeign immunity and its counterpart, governmental immunity, exist to protect the State and its political subdivisions from lawsuits and liability from money damages.'" And, "'[i]f the Legislature has not expressly waived immunity from suit, the State retains such immunity even if its liability is not disputed." Id. at 2. Furthermore, there is a "heavy presumption in favor of immunity." Here, the malpractice lawsuit against Dr. Watts and the state university he worked for arose from the plaintiff’s claim alleging that the defendant’s improper treatment of the plaintiff’s horse at the state university hospital resulted in the euthanization of the horse. The trial court could not say that "the trial court erred in granting the University's motion to dismiss Dr. Watts from this suit" based on the plaintiff's decision to file suit against both Dr. Watts and the University. Id.

IX. Prospects for Change and Final Thoughts

Veterinarians play a very important role in society. Among other things, they keep our beloved animals healthy. It is a necessary and very important profession that deserves more recognition. However, the current system has implicitly allowed legal immunity for professionals in this field by excluding veterinary malpractice from animal cruelty statutes and limiting compensation of companion animal owners to the fair market in veterinary malpractice cases.

The veterinary community’s argument that expanding veterinary malpractice compensation would result in “unintended and undesirable consequences that will actually hurt pets in the long run” is unfunded and hypocritical. People regard their companion animals as cherished members of their families, and it is reflected in the emotional and financial investment they make to assure their animals are happy and healthy. Veterinarians not just promote this bond between humans and their animals, but also have financially benefitted from it. They often use the “family doctor” approach, but refuse to face any liability risk that can arise from such an approach.

If people valued their animal based on their FMV, they would just simply opt to get rid of their sick animals and replace them with a healthy one instead of treating them.  Indeed, today, the value of companion animals is more emotional than financial and this is what keep small species veterinarians in the job market. Perhaps, new legislative language delineating the criteria and circumstances of recovery is necessary to have a more predictable risk of malpractice and prevent malpractice liability insurance premiums and the cost of veterinary care to grow unmeasurably. It is imperative that the legal system stops shielding veterinarians and sets in place legal mechanisms for companion animal owners to enforce the veterinary standard of care.

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