Veterinarian Issues: Related Cases

Case name Citationsort ascending Summary
Southall v. Gabel 277 N.E.2d 230 (Ohio App. 1971)

This case resulted from the alleged negligent transport of a horse that resulted in a drastic change in the horse's temperament (to a "killer horse"), which ultimately led to its destruction by its owner.  Before trial, defendant demurred to plaintiff's petition on the ground that the action was barred under R.C. s 2305.11, the act being 'malpractice' and therefore required to be brought within one year after the termination of treatment.  The Court of Appeals held that the trial court's decision overruling the demurrer to plaintiff's petition was correct, 'the petitioner is based on negligence for the transporting rather than malpractice.'  Further, the Court held that until the Supreme Court speaks, veterinarians are not included in the definition of malpractice (reversed and remanded - See , 293 N.E.2d 891 (Ohio, Mun.,1972).

Elephant, Inc. v. Hartford Acc. & Indem. Co. 239 So.2d 692 (La.App., 1970)

A veterinarian agreed to house, transport, and care for an elephant at no charge other than the actual expenses incurred therewith. One evening, the elephant ingested some poison left in its stall by the veterinarian and later died.  On appeal of the trial court award to plaintiff, the Court disagreed with defendant’s contention that he, as a gratuitous depositary, could only be held liable for gross negligence, willful misconduct, or fraud. In fact, the civil code in Louisiana, states the burden of a depositary is "that of ordinary care which may be expected of a prudent man."  However, an  agreement between the parties was found to release Dr. Cane of liability from negligent acts.

Kaufman v. Langhofer 222 P.3d 272 (Ariz.App. Div. 1, 2009)

This Arizona based appeal arises out of a veterinary malpractice action filed by plaintiff/appellant David Kaufman against defendants/appellees, William Langhofer, DVM, and Scottsdale Veterinary Clinic over the death of Salty, Kaufman's scarlet macaw. The main issue on appeal is whether a pet owner is entitled to recover emotional distress and loss of companionship damages over the death of his or her pet. Plaintiff argues that the court here should “expand” Arizona common law to allow a pet owner to recover emotional distress damages and damages for loss of companionship in a veterinarian malpractice action. While the court acknowledged the emotional distress Kaufman suffered over Salty's death, it noted that Dr. Langhofer's negligence did not directly harm Kaufman. Thus, the court felt that it would not be appropriate to expand Arizona common law to allow a pet owner to recover emotional distress or loss of companionship damages because that would offer broader compensation for the loss of a pet than for the loss of a human.

City of Houston v. Levingston 221 S.W.3d 204 (Tx.App.-Hous.(1 Dist.) 2006)

This opinion substitutes City of Houston v. Levingston, 2006 WL 241127 (Tex.App.-Hous. (1 Dist.)), which is withdrawn.

Ruden v. Hansen 206 N.W.2d 713 (Iowa 1973)

This appeal stems from an action against a defendant veterinarian for the alleged negligent vaccination of plaintiff’s pregnant hogs (gilts).  The court articulated the standard of care: "As a veterinarian defendant was duty bound to bring to his service the learning, skill and care which characterizes the profession generally. In other words, the care and diligence required was that as a careful and trustworthy veterinarian would be expected to exercise. . . We are convinced the correct standard of the veterinarian's care should be held to that exercised generally under similar circumstances."

Brockett v. Abbe 206 A.2d 447 (Conn.Cir.A.D. 1964)

Defendant-farmer filed a counterclaim for damages for the erroneous determination by the veterinarian that certain cow was not pregnant (plaintiff veterinarian used a "punch test" - where a fist is struck against the abdomen of a cow to determine pregnancy rather than the industry-standard rectal examination). As a result, defendant-farmer sold the cow for $170 versus the $550 he could have received for a pregnant cow.  The Court found that it was erroneous for the circuit court to apply the doctrine of res ipsa loquitor, as diagnoses and scientific treatment are improper subjects for the doctrine. The mere proof that the diagnosis later on turned out to be erroneous is insufficient to support a judgment, the court stated.

Gonzalez v. South Texas Veterinary Associates, Inc. 2013 WL 6729873 (Tex. App. Dec. 19, 2013), review denied (May 16, 2014) Plaintiff acquired an indoor/outdoor cat with an unknown medical and vaccination history. Plaintiff took cat to defendant for treatment and the cat received a vaccination. The cat soon developed a golf-ball-sized mass that contained a quarter-sized ulceration which was draining “matter” on the cat's right rear leg. When plaintiff returned the cat to the defendant, defendant diagnosed the cat with an infection, prescribed an antibiotic for treatment, and instructed Gonzalez to return if the cat's symptoms did not improve. When the cat's symptoms did not improve, plaintiff took the cat to another veterinarian who diagnosed the cat with vaccine-associated sarcoma. The cat had to be eventually euthanized. Acting pro se, the plaintiff filed suit, alleging that defendant failed to: (1) inform her of vaccine-associated sarcoma risk; (2) adhere to feline vaccination protocols; and (3) properly diagnose vaccine-associated sarcoma in the cat, which resulted in the loss of her life. On appeal, plaintiff asserted that the trial court erred by granting defendant's no-evidence and traditional motions for summary judgment. After examining the evidence in the light most favorable to plaintiff and disregarding all contrary evidence and inferences, the court concluded that the plaintiff brought forth more than a scintilla of probative evidence establishing the relevant standard of care to prove her malpractice claims. The trial court, therefore, erred by granting the no-evidence summary judgment. On the traditional summary judgment claim, the court held that that the defendant's evidence did not conclusively prove that a veterinarian complied with the applicable standard of care in light of another veterinarian's report to the contrary. The trial court, therefore, erred by granting defendant's traditional motion for summary judgment. The case was reversed and remanded.
Coy v. Ohio Veterinary Med. Licensing Bd. 2005 Ohio App. LEXIS 756

A veterinarian's license was revoked by the Ohio Veterinarian Medical Licensing Board and the vet challenged the revocation of his license.  The trial court found the vet guilty of gross incompetence and he appealed claiming there was no definition of gross incompetence in the statute.  The Court of Appeals affirmed the trial court holding no specific definition was required.

Veterinary Surgeons Investigating Committee v. Lloyd 2002 WL 31928523, 134 A Crim R 441

Appeal of agency determination of veterinarian malpractice for failure to detect ring worms in a cat. Long case with full discussion of process of administrative hearing and the standards by which to decide if an action is malpractice.

Williams v. Neutercorp (Unpublished) 1995 Tex. App. LEXIS 833 (Tex Ct. App. Apr. 20, 1995).

Appellant sought review of the order from the County Court dismissing appellant's lawsuit after it sustained the special exception filed by appellee company, appellee animal hospital, and appellee veterinarian in appellant's suit which alleged negligence and violations of the Texas Deceptive Trade Practices-Consumer Protection Act, Tex. Bus. & Com. Code Ann. § 17.50.  The special execption is that the Veterinary Licensing Act, Tex. Rev. Civ. Stat. Ann. art. 8890, 18C, expressly provided that the DTPA did not apply in veterinary malpractice cases.The court affirmed the lower court's order dismissing appellant's suit against appellees because the lower court did not abuse its discretion by dismissing appellant's pleadings with prejudice, after the lower court sustained the special exception regarding the Deceptive Trade Practices-Consumer Protection Act, and after appellant refused to amend her pleading.

Levine v. Knowles 197 So.2d 329 (Fla.App. 1967)

This negligence action for both compensatory and punitive damages results from the premature cremation of 'Tiki,' a Toy Chihuahua dog, who died while undergoing apparently routine treatment for a skin condition. Plaintiff instructed the veterinarian to keep Tiki's body so that he could have an autopsy performed, but the dog's body was cremated before it could be claimed so that, according to plaintiff, defendant could avoid malpractice claims. 

In this case, the court only determined that under the facts peculiar to this case, an action for damages was sufficiently alleged by the complaint and the defendant has failed to conclusively demonstrate the non-existence of all material issues of fact so as to be entitled to a summary final judgment.

Sherman v. Kissinger 195 P.3d 539 (Wash.,2008)

A dog owner sued a veterinarian and a veterinary hospital after her dog died. The Court of Appeals held that the medical malpractice act did not apply to veterinarians, and thus, did not bar claims for breach of fiduciary duty, negligent misrepresentation, conversion, trespass to chattels, and breach of bailment contract; the three-part analysis in McCurdy controlled the measure of damages and the burden of proof for damages; genuine issues of material fact about the market value of the dog, whether it could be replaced, and whether owner was entitled to present evidence of the dog’s intrinsic value, precluded summary judgment limiting owner's damages; the trial court did not abuse its discretion in striking expert’s testimony about the loss of the human-animal bond because owner was not entitled to emotional distress damages; and defendants were not entitled to attorney fees under the small claims statute.

Dyess v. Caraway 190 So.2d (666 La.App., 1966)

Plaintiff claimed damages for the death of five pedigreed Norwegian Elkhound puppies resulting from the negligence of defendant, Hugh L. Caraway, a duly licensed veterinarian. Specifically, defendant allegedly failed to make proper diagnostic tests, failed to give proper treatment for coccidia from which the puppy died, although the defendant had professional knowledge that the puppy was suffering from that disease, and failed to exercise the standard of care required by the average prudent veterinarian in the community. The court first noted the difficulty in diagnosing distemper. It also found the doctrine of res ipsa loquitur in applicable in the instant case, primarily for the reason that the instant case involves a question of diagnosis and treatment of a professional nature which in itself requires judgment.

McMahon v. Craig 176 Cal.App.4th 1502, 97 Cal.Rptr.3d 555 (Cal.App. 4 Dist., 2009)

In this California case, the plaintiff appealed a demurrer granted by the trial court on her claim of intentional infliction of emotional distress and portions of her complaint struck that sought damages for emotional distress and loss of companionship. The case stems from defendant-veterinarian's care of plaintiff's Maltese dog after surgery. Defendant also lied to plaintiff and falsified records concerning the treatment of the dog. On appeal of the trial court demurrer, this court held that an owner cannot recover emotional distress damages for alleged veterinary malpractice. The court found 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.

Gabriel v. Lovewell 164 S.W.3d 835 (Texas, 2005)

A Texas horse owner brought action against horse farm for negligence and breach of implied warranty in connection with the death of a horse in care of horse farm. On appeal of a decision in favor of the horse owner, the Court of Appeals held that by asking veterinarian if veterinarian told the horse owner that the horse died because it was not brought to veterinary clinic soon enough, the horse farm opened the door, and thus, the previously-rejected hearsay testimony regarding horse owner's conversation with veterinarian was admissible for limited purpose of impeaching veterinarian's testimony. Thus, the evidence was legally and factually sufficient to support the jury's verdict.

Scharer v. San Luis Rey Equine Hosp., Inc. 147 Cal.Rptr.3d 921 (Cal.App. 4 Dist.)

Horse owner sued veterinarians and equine hospital for professional malpractice after horse was euthanized less than two months after surgery to remove 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 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.

Price v. Brown, V.M.D. 131 Montg. Co. L. R. 150 (1994) Plaintiff's bull dog went to defendant veterinarian for surgery to correct a prolapsed urethra. The dog died a few days later. The plaintiff then sought to recover the value of the dog on a strict theory of bailment. Defendant filed a preliminary objection asserting that this doctrine was inapplicable and could not afford relief. The court held that the plaintiff had failed to state a claim from which relief could be sought and dismissed the complaint. The court, however, allowed the plaintiff to amend the compliant.In holding to sustain the defendant's preliminary objection, the court reasoned that since veterinarians are part of a professional discipline, 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 bailiff arrangement.
Hohenstein v. Dodds 10 N.W.2d 236 (Minn. 1943) This is an action against a licensed veterinarian to recover damages for his alleged negligence in the diagnosis and treatment of plaintiff's pigs.  Plaintiff alleged defendant-veterinarian negligently vaccinated his purebred pigs for cholera.  The court held that a n expert witness's opinion based on conflicting evidence which he is called upon to weigh is inadmissible.  Further, a n expert witness may not include the opinion of another expert witness as basis for his own opinion.  
State v. Avella --- So.3d ----, 2019 WL 2552529 (Fla. Dist. Ct. App. June 21, 2019) The Defendant was charged with practicing veterinary medicine without a license and for cruelty to animals. The Defendant made a homemade device attempting to treat his dog for a problem because he did not have the money to take his dog to the vet. The home treatment ended up injuring the dog and he took the dog to a veterinarian for treatment. The veterinarian stated that the dog needed to be taken to an advanced care veterinary facility, however, the Defendant could not do so due to lack of funds. The trial court dismissed the charges brought against the Defendant and the State of Florida appealed. Florida law forbids a person from practicing veterinary medicine without a license. The Defendant was not a veterinarian. The Defendant relied upon statutory exemptions in Florida’s statue that permit a person to care for his or her own animals and claims that he was just trying to help his dog, Thor. The Defendant also argued that the purpose of the statute was to prevent unlicensed veterinary care provided to the public rather than to criminalize the care an owner provides to his or her animals. The Court held that the trial court did not err in dismissing Count I for unlicensed practice of veterinary medicine given the stated purpose of the statute and the statutory exemptions. As for Count II, animal cruelty, the State argued that the Defendant’s conduct in using a homemade tool to remove bone fragments from the dog’s rectum and then failing to take the dog to an advanced care clinic fits under the Florida animal cruelty statute. Although the Defendant argued that he had no intention of inflicting pain upon his dog and was only trying to help him, the Court agreed with the State’s argument that “the statute does not require a specific intent to cause pain but punishes an intentional act that results in the excessive infliction of unnecessary pain or suffering.” Ultimately the Court affirmed the trial court’s dismissal of Count I, reversed the trial court’s dismissal of Count II and remanded for further proceedings on the animal cruelty charge.
Hines v. Quillivan --- F.3d ----, 2020 WL 7054278 (5th Cir. Dec. 2, 2020) This case asks whether a veterinarian in Texas has a right to engage in telemedicine for a pet he has not physically examined. The plaintiff challenged Texas' physical-examination requirement that prohibits veterinarians from offering individualized advice to pet owners unless the vet previously examined the animal. Dr. Ronald Hines, a licensed veterinarian in Texas, stopped practicing in-person veterinary medicine in 2002 due to his age and other ailments. He then transitioned to a practice based remotely through the Internet. In 2012, the Texas State Board of Veterinary Medical Examiners (the Board) investigated Hines and found he had violated state law. The Board ordered him to cease providing veterinary advice electronically without first physically examining the animal. In 2013, Dr. Hines filed suit against the Board members claiming that the physical-examination requirement violated his First Amendment, equal-protection, and substantive-due-process rights. The district court then granted the motion to dismiss by the Board and the Court of Appeals found Hines failed to state a claim on appeal. Since that 2015 opinion, Texas revised its medical doctor laws, allowing them to engage in telemedicine, but did not do the same for veterinary practice laws. In addition to that change, a United States Supreme Court held that statements made by medical doctors could now be deemed "professional speech" (the "NIFLA" case). As a result of these changes, Hines brought the present suit arguing that the changes in Texas' telemedicine laws and the NIFLA case enabled him to pursue a new equal-protection claim and First Amendment claim. With regard to his protected speech claim, this Court found that subsequent caselaw does entitle Hines' claim to greater judicial scrutiny than his previous case allowed. Thus, remand to the district court to make the initial evaluation of whether Hines' conduct or speech is being regulated is required. On the equal-protection argument, the court found that Hines presents an argument slightly different than his previous one. In essence, Hines argued in the prior appeal that the he physical-examination requirement treated veterinarians engaging in telemedicine differently than other veterinarians. Here, Hines argues that changes to the medical doctor licensing laws treats medical doctors differently than veterinarians in the state with respect to telemedicine. Using a rational-basis review, the court held that it is rational to distinguish between human and animal medicine because of the differences in training, schooling, and overall practice of the professions. The court found the state's proffered reason that animals cannot communicate their symptoms as humans can ordinarily was a persuasive rational basis (although both Hines and the Dissent note that some humans like infants are unable to speak similar to animals and yet are allowed to be treated via telemedicine). The court found the services provided by both professions are not interchangeable and thus, the physical-examination requirement is not a protectionist measure for medical doctors. Ultimately, the court left it to the Texas legislature to expand any telemedicine changes to the veterinary practice code. The action was affirmed in part, reversed and remanded in part.

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