Full Case Name:  Bob J. McADAMS v. W. Kendall FAULK, DVM; Vets and Pets

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Country of Origin:  United States Court Name:  Court of Appeals of Arkansas, Division I Primary Citation:  Not Reported in S.W.3d, 2002 WL 700956 (Ark.App.) Date of Decision:  Wednesday, April 24, 2002 Judge Name:  KAREN R. BAKER Jurisdiction Level:  Arkansas Judges:  KAREN R. BAKER HART and ROBBINS Docket Num:  CA 01-1350

Dog owner brought dog to veterinarian’s office where someone choked the dog, causing injuries that led to its death. The Court of Appeals held that the owner stated a veterinary malpractice claim against veterinarian because owner alleged that dog was choked while in veterinarian's care, that veterinarian failed to diagnose neck injury that proved fatal, performed unnecessary treatment out of greed, and refused to provide owner with medical explanation of dog's condition and death, all in violation of the veterinary licensing statute. The Court also held that violating the cruelty to animals statute was evidence of negligence, and that damages included economic loss, compensation for mental anguish, including future anguish. and punitive damages.


*1 This is an appeal from the trial court's granting without prejudice a motion to dismiss pursuant to Rule 12(b)(6) of the Arkansas Rules of Civil Procedure. We affirm in part and reverse and remand in part.

Appellant, Bob J. McAdams, filed his complaint pro se on May 11, 2001. The complaint is titled “Complaint for Malpractice and Negligence.” Appellant filed the complaint naming both himself and his dog as plaintiffs. The pleading incorporated by reference correspondence which was attached to the complaint. The complaint alleged that the facts and circumstances giving rise to appellant's action against appellees, W. Kendall Faulk, DVM, and Vets & Pets, arose from Dr. Faulk's treatment of appellant's dog, Mr. T, on February 14, 2000.

Standard of Review

Appellees moved for dismissal for failure to state facts upon which relief can be granted. Arkansas Rule of Civil Procedure 12(b)(6) provides the authority for the trial court to grant such a dismissal. Rule 12(b)(6) provides for the dismissal of a complaint and must be read in conjunction with Rule 8, which sets out the requirements of a complaint. Spires v. Members of Election Comm'n, 302 Ark. 407, 790 S.W.2d 167 (1990). Arkansas Rule of Civil Procedure 8(a) provides that a pleading “shall contain (1) a statement in ordinary and concise language of facts showing that the court has jurisdiction of the claim and is the proper venue and that the pleader is entitled to relief, and (2) a demand for the relief to which the pleader considers himself entitled.” In addition, it is well recognized that pleadings are to be liberally construed and are sufficient if they advise a party of its obligations and allege a breach of them. Deitsch v. Tillery, 309 Ark. 401, 405, 833 S.W.2d 760 (1992); Bethel Baptist Church v. Church Mut. Ins. Co., 54 Ark.App. 262, 924 S.W.2d 494 (1996).

In order to properly dismiss the complaint, the trial court must find that appellant either (1) failed to state general facts upon which relief could have been granted or (2) failed to include specific facts pertaining to one or more of the elements of its claims after accepting all facts contained in the complaint as true and in the light most favorable to the non-moving party. See Perrodin v. Rooker, 322 Ark. 117, 908 S.W.2d 85 (1995).

Factual Allegations of Complaint

The relevant factual allegations as set forth in the complaint, including the referenced correspondence, are accepted as true and can be summarized as follows:

Appellant took his pet dog to Dr. Faulk's veterinarian office on the morning of February 14, 2000, for a steroid shot. Appellant periodically took his dog to Dr. Faulk when the dog's regular vet was unavailable. The dog walked into Dr. Faulk's office. The doctor refused to treat the dog until appellant agreed to let Dr. Faulk perform an x-ray, even though appellant explained that the dog had just had an x-ray. Appellant left the dog for the procedure, expecting to pick him up in approximately one hour.

*2 Despite appellant's attempts to retrieve his dog, the doctor's employees refused to return his pet until six and half hours later. When appellant reclaimed his dog, the animal could not walk and never walked again. Not only could the dog not walk, but he began experiencing diarrhea. Appellant took the dog to Dr. Faulk for treatment two more times that week. The diarrhea continued and resulted in a serious bleeding problem for which appellant sought treatment at the Animal Emergency Clinic in Little Rock. Dr. Faulk's administering of medicine to the dog on the initial visit was the cause of the diarrhea.

Appellant sought further treatment of the dog from a specialist regarding his inability to walk. The specialist identified on sight the cause of the dog's inability to walk as a serious neck injury. The nature of the neck injury was shown by x-ray to be a ruptured neck disk. Based upon appellant's knowledge of his dog's tendency to bark and scratch when confined in a small area and upon his knowledge of choke holders, he believed that someone in Dr. Faulk's office inappropriately used a choke holder on his dog to make him be quiet and this inappropriate action caused the neck injury. The neck injury caused the dog's inability to walk. The dog's inability to walk resulted in premature failure of the animal's organs and resulted in the dog's premature death on December 5, 2000.

The process of the pet's death and the actual death of the pet were devastating to appellant. Appellant had raised the dog “since he was a baby.” Appellant had always taken very good care of the dog, and the animal had been his constant companion. Over the nine months and twenty-one days leading to his death, the dog became incontinent and required twenty-four hour care. The appellant and his dog completely rearranged their lives and “[t]here was no night and day during this long nightmare....” Dr. Faulk's actions caused appellant and his dog pain, depression, and suffering from which appellant would never recover. Appellant had requested Dr. Faulk provide details of the dog's treatment to help explain this dog's inability to walk and eventual death. Instead, Dr. Faulk turned it over to his malpractice carrier who responded with correspondence that appellant deemed offensive.

Appellant's prayer for relief demanded a jury trial of all factual issues. In addition, he and his dog asked for judgment against the defendants in an amount of not less than $50,000 to be paid in the name of Mr. T to the Pulaski County Humane Society or any such greater amount as may be determined necessary to deter Dr. Faulk and others in the future for such malpractice and negligence.

Dismissal of the Complaint as to the Dog, Mr. T, as Plaintiff
Applying this standard, we first consider the dismissal of the complaint as it applies to the dog, Mr. T, as a plaintiff. An appellate court does not consider assignments of error that are unsupported by convincing legal authority or argument unless it is apparent without further research that the argument is well taken. Tyrone v. Dennis, 73 Ark.App. 209, 39 S.W.3d 800 (2001). Appellant's brief provides no argument regarding the trial court's dismissal without prejudice of the complaint regarding the dog, Mr. T, as plaintiff, and the proposed amended complaint no longer identified the dog as a plaintiff. Accordingly, we affirm the trial court's dismissal as to that point.


Dismissal of the Complaint as to Appellant, Bob J. McAdams

*3 However, we hold that appellant's individual cause of action against appellees should be allowed to proceed. A liberal construction of appellant's complaint advises Dr. Faulk that he had a fiduciary obligation to appellant regarding the care of appellant's dog. See Ark.Code Ann. § 17-101-102(11) (Repl.2002) (definition of veterinarian-client-patient relationship). Appellant entrusted the veterinarian care of his pet dog to Dr. Faulk who accepted responsibility for the care of appellant's dog.

The complaint further alleges that while the dog was within Dr. Faulk's care and control, one of Dr. Faulk's employees choked appellant's dog to get the dog to be quiet. Dr. Faulk is responsible for the acts of his employees regarding the care of animals entrusted to Dr. Faulk. See St. Joseph's Reg. Health Ctr. v. Munos, 326 Ark. 605, 934 S.W.2d 192 (1996) (holding that under doctrine of respondeat superior, employer may be held vicariously liable for tortious conduct of agent if evidence shows that such conduct was committed within scope of agent's employment).

The choking of a dog in an attempt to quiet the dog was not a method of medical care which would fall within the consent of appellant to Dr. Faulk regarding the veterinarian care of his pet. Because the choking of a dog would not qualify as veterinarian treatment, the act would fall within the arena of general tort law, not malpractice. See McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998) (allegations that a doctor improperly touched, examined, and otherwise fondled plaintiff's breasts during a physical examination stated cause of action for the tort of outrage). While the facts alleged may support a cause of action for a tort in addition to negligence, violation of a penal statute is itself evidence of negligence to be considered along with other facts and circumstances. See Prickett v. Farrell, 248 Ark. 996, 455 S.W.2d 74 (1970). Cruelty to animals is a Class A misdemeanor. Ark.Code Ann. § 5-62-101 (Supp.2001). This criminal prohibition specifically includes subjecting any animal to cruel mistreatment and injuring any animal belonging to another without legal privilege or consent of the owner. Id. Therefore, the complaint alleges facts to support a tort claim and should not have been dismissed. If appellees meant to suggest that the complaint must be dismissed because appellant merely asserts his belief that his dog was choked, as opposed to simply stating that the dog was choked by someone in Dr. Faulk's office, we find no merit in that contention.

Regarding the malpractice claim, the complaint states that another veterinarian diagnosed the neck injury by merely looking at the animal and that an x-ray confirmed this diagnosis. Therefore, the complaint sufficiently advises appellees that Dr. Faulk either failed to diagnose the severe neck injury on subsequent treatment or purposely tried to hide the injury from appellant. Either way, the pleadings allege that Dr. Faulk failed to treat the dog for the severe neck injury. The complaint also states that this severe neck injury to the dog resulted in the animal being unable to walk, and that this inability to walk eventually led to a premature death of the dog. The complaint explains that the process of the dog's dying caused appellant to alter his lifestyle during this process and caused great suffering and depression and additional medical expenses. In addition, the complaint states that Dr. Faulk performed unnecessary treatment upon the dog out of greed and refused to provide the medical details for the dog's condition.

*4 Appellant's complaint sufficiently advised appellees of the nature of the malpractice claims. Appellees state that appellant's complaint is governed by the Arkansas Medical Malpractice Act. See Ark.Code Ann Sect. 16-114-201 (1987) et. seq. (including veterinarians in the definition of “medical care provider”). Appellees insist that plaintiff's complaint warranted dismissal because it does not allege that the care given by Dr. Faulk fell below the standard of care resulting in the injuries or that Dr. Faulk's treatment lacked adequate consent as required for a prima facie case of medical malpractice under Ark.Code Ann. § 16-114-206.

However, the relevant inquiry is whether the complaint states facts from which Dr. Faulk could determine how he had breached the standard of care, to determine how his actions fell below the standard of care which resulted in the injuries or that his treatment lacked adequate consent. In addition to the allegations that Dr. Faulk failed to diagnose and treat a neck injury readily apparent to another veterinarian, appellant alleged that his dog was choked, that Dr. Faulk performed unnecessary treatment because of greed, and that he refused to provide appellant with a medical explanation of his dog's condition and eventual death.

Section 17-101-305 of Arkansas Code Annotated provides for the denial, suspension, or revocation of a veterinarian's license based upon the following relevant circumstances:

(a) Upon written complaint by any person or on the Veterinary Medical Examining Board's own motion and after notice and hearing as prescribed in the Arkansas Administrative Procedure Act, § 25-15-201 et seq., the board may deny, suspend for a definite period, or revoke the license of any veterinarian, and/or impose a civil penalty for:
(10) Cruelty to animals;
(15) Overtreating patients or charging for services which did not occur unless the services were contracted for in advance or for services which were not rendered or documented in the patient's records or charging for services which were not consented to by the owner of the patient or the owner's agent:
(16)(A) Failing to furnish details of a patient's medical record to ... owner ... upon proper request

Ark.Code Ann. § 17-101-305 (Repl.2002)(amended 2001).

The choking of an animal which results in a severe neck injury rendering the animal immobile and which results in loss of organ function and death falls within the provision regarding cruelty to animals. The allegations that Dr. Faulk engaged in unnecessary treatment out of greed falls within the provision of overtreating patients. The allegation that appellant had requested Dr. Faulk provide details of the dog's treatment to help explain this dog's inability to walk and eventual death and that rather than provide the details Dr. Faulk turned it over to his malpractice carrier could fall within the provision regarding the veterinarian's failure to furnish medical records to appellant as owner of the dog. Appellant sufficiently advised appellees that Dr. Faulk engaged in acts which could result in the revocation of his license to practice veterinary medicine. Allegations of conduct sufficient to justify the revocation of a professional license are sufficient to place a professional on notice of his breach of his duty to his fiduciary, in addition to advising appellees of Dr. Faulk's failure to diagnose and treat the neck injury.

*5 Appellees also contend that appellant's complaint should be dismissed because it fails to allege proper relief on two points. First, they claim it fails to make an allegation regarding the market value of his dog either at the time of its death or immediately following the occurrence in question. They claim that this failure requires dismissal because Arkansas law is clear that dogs are personal property and the measure of damages is the market value of the dog at the time of its death. See Kerney v. Walker, 174 Ark. 191, 294 S.W. 407 (1927); Missouri Pac. R.R. Co. v. Green, 172 Ark. 423, 288 S.W. 908 (1926); Kanis v. Rogers, 119 Ark. 120, 177 S.W. 413 (1915); El Dorado & Bastrop Ry. Co. v. Knox, 90 Ark. 1, 117 S.W. 779 (1909). Damages on a negligence claim are not limited to economic loss damages, and include compensation for mental anguish. See Howard W. Brill, Arkansas Law of Damages § 35-1 (2d ed. 1990 & Supp.1994); Gilmer v. Walt Disney Co., 915 F.Supp. 1001 (1996). An award for mental anguish may cover not only the mental suffering prior to trial, but also the suffering which is reasonably probable to occur in the future. Knoles v. Salazar, 298 Ark. 281, 766 S.W.2d 613 (1989). The allegations include reference to appellant's mental suffering from which he will never recover. We also note that punitive damages are recoverable on a malpractice claim.

Second, they assert that the complaint fails to allege any facts that would support an award of $50,000 “or any such greater amount as may be determined to be necessary to deter Dr. Faulk and others” which appellant indicated should be paid to the Pulaski County Humane Society. Appellees also add that at the time the complaint was filed, that the circuit court was without jurisdiction to grant injunctive relief. See Villines v. Harris 340 Ark. 319, 11 S.W.3d 516 (2000). Regarding this point, we note that although the prayer for relief in the document titled “complaint” asks for the money to be given directly to the Humane Society from appellees, the attached correspondence indicated appellant's intent to donate all proceeds he received from the lawsuit to the Humane Society. This discrepancy under the doctrine of liberal construction is not fatal.

Accordingly, we reverse and remand the trial court's dismissal of the complaint as to appellant, Bob J. McAdams.

Affirmed in part; reversed and remanded in part.

HART and ROBBINS, JJ., agree.

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