Veterinary Malpractice: The Basics

Attorney Kjirsten Lee, J.D.’s latest column on Equine Law focuses on veterinary malpractice.

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Most of us have heard of medical malpractice: a doctor does something wrong, and their patient sues. What is generally unclear is how we determine what the doctor can be held liable for and what the patient may or may not be able to recover.

Veterinary malpractice is a relatively new legal concept — prior to World War II, malpractice claims did not apply to veterinarians. Today most states have a law stating that veterinarians can also be held liable for malpractice when an animal under their care dies or is injured.

What is malpractice, anyway?

At its core, malpractice is a mistake that a professional should not make. This can be a misdiagnosis, prescribing the wrong course of treatment, or stopping treatment when the animal still needs veterinary attention. It is important to distinguish malpractice from ordinary negligence.

The term “malpractice” applies only to professionals. A veterinarian who holds a state license must avoid malpractice, whereas a trainer must avoid negligence. Regardless of the trainer’s experience and background they cannot be held to the same standard as a licensed veterinarian.

Malpractice only applies when a veterinarian acts in his or her professional capacity. When an injury occurs as a result of something that involved matters of medical science, and the injury is the result of something within the professional knowledge of the individual holding him or herself out as a veterinarian, then malpractice is the proper standard. If the veterinarian is not acting in his or her professional capacity – for instance, if the veterinarian is loading a horse onto a trailer to go home after spending time at the clinic – then ordinary negligence is the proper standard.

Lawyers like to talk about “elements” of a lawsuit. Malpractice has four generally recognized elements:

1. Duty: the defendant veterinarian owed the injured animal a duty of care – the veterinarian had accepted responsibility for the animal’s treatment.

2. Breach: the actions or nonactions of the veterinarian did not conform to the professional standard of conduct – this will require expert testimony from another veterinarian to establish.

3. Causation: failure to conform to the professional standard caused the harm.

4. Damages: the harm resulted in damages to the plaintiff, not just the animal in question – these will generally be monetary damages, specifically either the market value of the animal or the cost of veterinary care.

The difficulty in proving veterinary malpractice.

Most – but not all – veterinary malpractice cases are hard for the plaintiff horse owner to win, generally for one of two reasons:

1. It is hard to find an expert witness to prove breach.

2. Horses are personal property under the law, which means that in many states owners cannot recover pain & suffering damages to compensate for their emotional attachment to the horse.

Expert witnesses.

To qualify as an expert, a witness must be a veterinarian. If the defendant veterinarian is a specialist – in lamenesses, colic, or breeding, for example – then the expert must have similar qualifications. If the state where the defendant veterinarian is being sued has a community-based standard, then the expert must have actual knowledge of the veterinary practice in the defendant veterinarian’s community (this doesn’t happen very often any more – it used to be that rural veterinarians were held to a lower standard because they weren’t expected to have access to the same sophisticated techniques and facilities, but that is no longer the case).

So what does an expert witness do? Their job is to judge the conduct of the defendant veterinarian. An expert witness states whether, in his or her opinion, the actions of the defendant veterinarian complied with the appropriate standard of care. The ability to give an opinion separates expert witnesses from non-experts – non-experts only provide facts.

Who is liable, and for what.

Common sense: a veterinarian is liable for his or her own actions.

Legal sense: a veterinarian is also liable for the actions of those working underneath him or her – technicians, assistants, and others. The legal doctrine of respondeat superior states that an employer is liable for the actions of employees performed within the course of their employment. For veterinarians, who may not own the clinic where they practice, this doctrine can be applied to veterinarians supervising others, rather than being limited to employers.

Defenses.

A defendant veterinarian (through their lawyer) might be able to raise a defense.

Statute of limitations. This is a state law that limits the amount of time a plaintiff has to file a lawsuit. Each state has a different statute of limitations, and the amount of time can vary based on the state and the manner in which a plaintiff asserts his or her claim – a negligence claim may, for example, have a different statute of limitations than a malpractice claim.

Good Samaritan. Some states have Good Samaritan laws, which release veterinarians from liability when they give care in an emergency situation. However, a veterinarian who gives emergency care may still be liable for gross negligence.

Results of a veterinary malpractice case.

Even if a defendant veterinarian is not found liable by a court of law and does not have to pay damages to the plaintiff, the veterinarian may still face revocation of his or her veterinary license. A horse owner can file a complaint with the state licensing board or file a grievance with the appropriate professional organization. This will not give damages or relief to the owner or animal, but it acts as a check on the veterinarian’s general level of practice.

Kjirsten Lee, J.D., is an attorney in Memphis, Tennessee. She has written on topics such as the Horse Protection Act and use of drugs in racehorses. Kjirsten and her OTTB, Gobain, compete in dressage and eventing.