Equine Law: Pre-purchase Exams

Attorney Kjirsten Lee, J.D. shares advice from a legal perspective.

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Raise your hand if you’ve ever bought a horse.

Now, raise your hand if you had a pre-purchase exam done before buying the horse … and now, raise your hand if you documented everything leading up to, during, and after the pre-purchase exam. I expect that the number of hands raised went down with each question.

Whether you are a buyer, seller, veterinarian, or agent for either the buyer or seller, it is best to write down everything related to the exam. This will serve to both educate and protect all parties involved in the event of any conflict.

Why have a pre-purchase exam?

Pre-purchase exams, or vet checks, are intended to find any preexisting or potential problems that may affect the horse’s soundness and suitability for the prospective buyer. The American Association of Equine Practitioners (AAEP) remarks that while a pre-purchase has a place in deciding whether to buy a horse, the exam must be put into perspective. It is best to consider the exam as an examination of discovery.

The people involved

Several people are involved in the pre-purchase exam, including (but not limited to): the buyer, the trainer, the buyer’s and/or seller’s agent, and the veterinarian. In these scenarios a trainer may or may not have legal agent status – if you are concerned about this, ask an attorney. The buyer’s trainer may be responsible for assessing the buyer’s expectations and determining whether the horse is suitable.

Because buyers have different levels of experience and expectations, the veterinarian should determine the particular buyer’s expectations and define limitations of the exam, always emphasizing that the pre-purchase exam is not a guarantee and does not eliminate risks.

The potential buyer owns the information produced as a result of the exam. However, the buyer should be careful to maintain a level of confidentiality to insure that the horse’s reputation is not altered as a result of inappropriate dissemination of medical information. If the buyer does not purchase the horse and reveals confidential medical information and the horse’s reputation is altered, the seller may have a cause of action against the former potential buyer.

The buyer or their agent may request the horse’s medical history, which may then be produced by the seller or their veterinarian. These medical records must be returned at the end of the examination.

Pre-examination procedure

Before the exam even starts, there are some suggested procedures. First, the exam and its procedures should be thoroughly reviewed with the buyer and seller. Any written release forms should be obtained before the examination.

If the veterinarian is familiar with the rules of the discipline for which the horse is being purchased, they should explain how those may apply to the exam – for example, any height requirements. The veterinarian should also review state and international disease testing with the buyer.

Ideally, the seller should provide a history for the examining veterinarian. This helps to legally bind the seller and gives information that the buyer might not have otherwise requested.

Physical examination

The Merck Veterinary Manual suggests four sections for the examination:

• Observing the horse in the stall
• Observing the horse walk and trot on a straight line, doing flexion tests, and longeing
• Observing the horse under saddle
• Diagnostic procedures such as radiographs and ultrasounds

In many cases, a buyer may elect not to take radiographs or ultrasounds if nothing in the longeing, trot-up, or flexions suggested any underlying unsoundness. The above procedures are merely a suggestion. Individual state veterinary boards may publish standardized pre-purchase examination procedures for veterinarians to comply with.

Report of findings

The veterinarian should prepare a summary report of his or her findings. The report should describe any abnormal or undesirable findings, including opinions as to the functional effect of these findings. It should also note any tests that were recommended to but declined by the buyer.

The AAEP publishes guidelines for pre-purchase exams as well as specific guidelines to report the exams. A practical guide to pre-purchase exams published by the AAEP can be found here.

Pre-purchase exams are important tools for understanding a horse’s physical abilities. A buyer must keep an open mind and view the exam as an opportunity to gather and interpret information. The veterinarian must be able to communicate their findings to the potential buyer and educate the buyer about any abnormalities.

Legal issues

Sometimes exam results turn out to be incorrect. For the veterinarian, it is important to emphasize that nothing in the exam is a guarantee of future soundness – the exam is intended to find abnormalities, not to confirm future soundness.

If you as a buyer think there may have been a problem with the pre-purchase exam, contact an equine attorney. Mistakes in the pre-purchase may give rise to a claim of veterinary malpractice, but such a claim can be difficult to prove.

Kjirsten Lee, J.D., is an attorney in Memphis, TN. 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.