Seeking Justice

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A horse in your care has become ill or, worse, has died after being treated by your veterinarian. The horse has suffered miserably, and so have you and your clients. You suspect veterinary malpractice has occurred and maybe you are considering legal action against the veterinarian. Watch out! Veterinary malpractice cases can be much more complicated and costly than you think.

Over the years, horse owners have sued veterinarians for several different things, such as:

• mis-diagnosing, or failing to diagnose, a horse’s lameness, illness, or pregnancy status

• giving improper medications or improper dosages

• using inappropriate methods or devices to restrain a horse

• improperly performing surgical procedures (in one case, for example, a horse entered the operating room for a colic surgery and came out with an amputated tail)

• poor follow-up care

DO?YOU?HAVE?A?CASE?

Occasionally, when faced with a claim of malpractice, veterinarians or their insurers will admit malpractice occurred and will try to resolve the matter through a mutually agreeable settlement. Unfortunately, if that does not happen, horse owners must decide whether to pursue a lawsuit.

Winning a veterinary malpractice lawsuit generally requires a horse owner to prove all of the following:

• The veterinarian who treated the horse was required to do his or her job in a certain way. Lawyers call this the “standard of care.”

• The veterinarian, by treating the horse in a sub-standard way, fell below the standard of care that was expected of him or her.

• The veterinarian’s wrongdoing, and not some other reason, caused the horse’s death or injury. Lawyers generally call this “proximate cause.”

• The veterinarian’s mistake caused you or your client to lose a sum of money. This is called “damages.” State laws determine what damages can be awarded to people who win their case.

As these factors indicate, veterinary malpractice cases can be especially complex. And because of the strict standards of evidence that courts typically require for these cases, the cost of bringing a winning case might exceed the recovery if the case wins.

EXPERTS ARE CRUCIAL

Aside from the expense of a lawyer, the next highest expense in a veterinary malpractice case is usually the cost of expert witnesses. More and more courts expect plaintiffs (people who bring lawsuits) to find a qualified veterinarian who will serve as an “expert witness” to prove the standard of care, that a mistake was made by the veterinarian, and that the veterinarian’s error was more probable than not the cause of the horse’s injury or demise. With very few exceptions, expert witnesses must be paid for their time, and well-credentialed veterinarians can demand thousands of dollars.

The lack of a qualified expert can spell doom for a veterinary malpractice case. Courts have dismissed veterinary malpractice cases when the plaintiff had no expert witness or an unqualified expert who lacked the proper training and credentials to testify. By comparison, however, courts in a small number of cases have ruled that no expert witness was needed, even though a veterinarian was sued. One of those cases involved, for example, a veterinarian in California who was accused of negligently operating an equine treadmill and causing injury to a horse.

In addition, an equine appraiser might be needed as another expert witness. The appraiser would determine the value of the horse at the time of its death or to help establish how much the horse’s value decreased as a result of the malpractice.

MISUNDERSTANDINGS REGARDING DAMAGES

When a horse gets injured or killed because of veterinary malpractice, the law generally holds that owners might collect any of the following if they win their case, although state laws differ:

• If the horse does not survive, its value around the time of its death (called “fair market value”). Fair market value does not mean sentimental value but is based on many factors, such as the horse’s age, breed, conformation, health, and money the horse brought in from showing, breeding, or racing. Depending on the case, it might be advisable to hire an appraiser or qualified equine professional to help prove fair market value. About 16 states have laws that specifically limit recovery to an animal’s fair market value.

• The amount of money that the horse has decreased in value, if the horse lives.

• Lost profits, such as lost stud fees, offspring, or race or show earnings if they can be proved with legally sufficient certainty.

• The value of your time spent caring for your injured horse.

• Money you spent caring for your horse’s care or recovery.

Do not expect a court to consider awarding “pain and suffering” for veterinary malpractice. Very few will, and, even then, the courts often look for evidence of severe wrongdoing or neglect. This may change in the future, and some animal rights organizations have been pursuing reforms that would allow owners of horses and pets to recover more than fair market value in these and other cases.

QUICK ACTION REQUIRED

If you suspect veterinary malpractice has occurred, quick and decisive action is important. State laws limit the time in which licensed professionals, such as veterinarians, can be sued for malpractice. These laws, known as statutes of limitations, vary from state to state. California, for example, has a one-year statute of limitations. Michigan’s statute of limitations is two years from the date of the last treatment or six months from the date the malpractice was discovered, whichever occurs last. Because of these and other variations, contact a lawyer to find your state’s statute of limitations.

OTHER OPTIONS

Maybe the statute of limitations has run out, leaving you without a case. Maybe you cannot find a lawyer who shares your enthusiasm for bringing a case. Or, maybe a lawsuit against a veterinarian is simply not for you or your client. You may want to consider lodging a complaint against the veterinarian’s license. Challenges of this type would not be filed in a courthouse but rather with the proper state authority that regulates veterinarians’ licenses, possibly the state board of veterinary medicine or licensing board. This body may also have the power to take away the veterinarian’s license or to suspend it for a while when evidence exists that the veterinarian is not competent to do his or her job. Do not expect this option to compensate for any losses.