What is
veterinary malpractice
"Malpractice" is the
failure of a professional, such as a vet, to perform services pursuant
to the "standard of care." The "standard of care" is
what other professionals, similarly situated (geographically and within
the same field of specialization), would do under the same circumstances. For
example, if you brought your dog to a vet, and your dog had been bitten
by another animal, and the standard of care called for the vet to give
your dog a certain vaccination, and the dog later became ill or died as
a result of the failure of the vet to give the shot, then the vet would
be liable for all resulting losses and damages.
What are the elements
of veterinary malpractice?
Here is what has to be proved:
-
The dog had a certain condition.
-
The standard of care was for the vet to take
a certain action, i.e., give a certain vaccination.
-
The vet did not take the action required by
the standard of care.
-
The dog became ill or died as a result of
the vet's failure to take the required action.
In any one case, how
can the elements be proved?
It is very difficult and can be very expensive
to prove the second and fourth elements above.
The second element requires that the dog
owner prove the standard of care. Proof of the standard of care must come
from an admissible source of evidence.
-
In a small claims case (i.e., a case involving
less than $5,000.00 in losses and damages), proof may be by way of authoritative
textbook, authoritative veterinary literature, or better yet, by a declaration
or letter from another vet.
-
The vet's letter or declaration would have
to establish these points: he or she is a vet, practices veterinary medicine
in the same general geographic area as the defendant, has reviewed the
defendant vet's chart for the owner's dog; and that there is a standard
of care applicable to the dog's condition, the testifying vet is familiar
with that standard of care, the standard of care required that the defendant
vet do the following things, the defendant's chart reveals a complete absence
of those things, if the standard of care had been followed then the dog
would not have gotten ill or died, and therefore the defendant committed
veterinary malpractice.
It is difficult to get a professional to testify
against another professional. This is caused by human nature. It is true
of doctors, lawyers, police officers, and every other profession on the
face of the Earth. Victims have a difficult time proving malpractice cases
because of this factor.
The other problem is the fourth element
described above. The victim must prove that the dog would not have gotten
ill or died if the standard of care have been followed. This is very difficult
because of the inherent risks of any veterinary procedure. For example,
many drugs come with warnings that they might not work, and that a certain
percentage of the animals who take that drug will die from it. The flea
medication I gave my rabbits came with that warning.
So the vet can say that, even if the shot
were given, it might not have worked, and in fact it might have killed
the dog sooner.
The cause of death requires an autopsy
and a written opinion by a pathologist establishing the cause. An accurate
pathology report always states that the primary cause of death was failure
of the heart to pump, even if the victim is electrocuted. The secondary
factors are then listed, such as problems with kidneys or liver. You have
to get a pathologist to testify that all of the secondary factors are consistent
with only one interpretation, namely the condition that resulted from the
failure of the vet to perform up to the standard of care.
The bottom line
Complicated. Difficult. Expensive to prove.
That's not the worse part. The dog owner most certainly needs legal advice
-- in fact, needs legal representation. However, the losses and damages
are not that great in terms of possible maximum recovery.
In some states, there is law that a dog
is simply another piece of property, like a table or chair, thereby
limiting the maximum judgment to the cost or market value of the dog. California
is one big gray area when it comes to this. I am trying to change that,
but it has not happened yet.
The point is that, after looking at the
costs of getting these expert opinions, plus the cost of the attorney,
the dog owner has to conclude that there is nothing that can be done except
politely ask the defendant vet to pay up, or go to small claims court with
whatever you have and make the most forcible presentation you possibly
can.
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