A malpractice doctrine

NATIONAL REPORT— Her message is stark. Design a fair system to resolve malpractice claims or the courts will.

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Founder of the American Bar Association's Animal Law Committee, Barbara Gislason, a Minneapolis attorney and noted expert, spoke with DVM Newsmagazine about a new field she is helping pioneer — animal law.

From veterinary malpractice to her advocacy for Good-Samaritan laws for veterinarians, there is little question the legal arena for the $10 billion veterinary services market is changing rapidly.

"It's happening so fast, we can't even see it," Gislason says.

The balance of justice: Animal-law expert Barbara Gislason believes the stage is set for change in veterinary malpractice law. Organized veterinary medicine should take it as an opportunity to design a system that is fair for consumers and veterinarians.

Watched and feared by industry insiders for the last decade, the courts have just scratched at emotional damages in cases of malpractice. Even the largest veterinary malpractice settlement in U.S. history, nicknamed the Bluestone case in Santa Monica, Calif., saw a judgment of $39,000 in 2004, but it cost the plaintiffs an eye-watering $350,000 to get the verdict. Custody disputes involving pets have been reported in New York, Maryland and Texas.

Added up, the status of animals in society is changing, and so will court decisions regarding a pet's emotional value to owners, Gislason says. It's just a matter of time. Consider these well-published professional trends:

• Escalating costs of veterinary care

• Relatively low purchase prices for non-purebred pets

• Greater access to sophisticated care

• Highly variable standards of care

• Tightening human-animal bond

• A growing cadre of lawyers working on animal-law cases (estimated at 5,000 last year).

Historically, the remedy has been an animal's replacement value in cases of veterinary malpractice. In the legal world, that's just not sitting well.

"One of the things that is bugging animal lawyers is that these people are being told these animals do not have value," Gislason says.

There is an economic disincentive for owners to pursue a malpractice case, when courts simply award replacement value. In many cases, the animal was free.

Low pet values limit liability for veterinarians when cases are botched. Good for veterinarians, right?

The problem, Gislason argues, is that the issue of fairness isn't in balance, and it caught the eye of the legal community.

"I don't think this one is going to go away. There has to be some kind of standard. When a case comes up that every veterinarian would agree is terrible, there is no remedy. In the next five years there will be a groundswell of lawyers who are motivated to do something about that."

A new model

Her message? Veterinary medicine should pursue alternatives to the human malpractice model.

"It seems to me that enlightened veterinarians could come up with a comprehensive scheme that is not based on the medical-malpractice model," which could include committees to screen the frivolous cases. "I don't believe that society views animals identical to people," Gislason says. Therefore the profession could work with the legal community to design an entirely new model that would be fair to veterinarians and consumers.

"To say that it might become like the human model is unlikely. I mean, that might happen in 300 years. There could be much more reasonable measures taken."

In the interim, as veterinary prices rise, so too will legal scrutiny when faced with malpractice.

"In the next 10 years, there are going to be people who are in a position to pay really large sums of money to save their animals. That seems to be the trend. If someone is spending $20,000 on a cancer case, for example, yet the veterinarian chose not to use chemotherapy but saline solution instead, what should the remedy be?

"If there is a political will to approach a problem, I think there are always reasonable ways to solve it," Gislason adds.

"I have had so many people sit in my office with terrible stories" — from animals that have sustained third-degree burns because warming blankets were left on to the absolute disregard of use of pain medications.

"There is a real indignation for anyone who loses an animal from a malpractice case. And it bothers the lawyers who are hearing these stories over and over again. I have been one of them."

Legal status of animals

Yet, the legal issues surrounding animals extend far beyond malpractice. The transfer of ownership is one example.

More complicated cases involving breeders are emerging, including contracts calling for co-ownership.

If an animal becomes valuable in the show circuit or entertainment arena, breeders want to retain partial ownership. On the flip side, what about unwanted animals that are abandoned at veterinary practices? At what point is ownership transferred?

"It is very unclear when the magic moment comes when title passes. It even gets more confusing when it comes to breeders. Many of them have very complicated contracts when it comes to co-ownership. I have seen nightmare cases with show dogs," Gislason explains.

The welfare of the animal needs to factor into the decision-making process.

"That is an area that interests me. I know people get all bent out of shape regarding property designation. Why can't you go further in regard to living property to think about moral issues like right and wrong?" she says.

"If judges forgot to think about the fact that animals are property and looked at them like a family pet, they are going to consider the best interests of the animal. Who gets title? Is this a premarital dog? Never mind that the premarital owner kicked that dog every day. That is the kind of problem we are having in our culture."

Good Samaritan

When it comes to legally protecting veterinarians for helping animals as Good Samaritans, Gislason is a staunch ally.

In most states, the Good-Samaritan role offered to physicians hasn't been extended to veterinarians, which was exemplified in animal rescue following Hurricane Katrina.

"As strong as I feel about the valuation side, I have been the strongest advocate for veterinarians in an emergency context."

One example, Gislason cites, is the inclusion veterinarians as Good Samaritans in model legislation from the National Conference of Commissioners of Uniform State Laws, a group that counsels state lawmakers and offers non-partisan legislation to bring clarity to critical areas of the law.

"I want veterinarians to feel good about these laws so they want to respond as first responders. It's good for them and good for the animals."