How much is that doggie in the window? (Proceedings)

Introduction

Many veterinary practitioners in recent times use adjectives, such as "demanding," "assertive," "knowledgeable," and "forceful," to describe common characteristics of their clients. The consumer age has brought with it a client base that is readily willing to assert its legal rights, and in some cases, our laws have made the court system more accessible for clients to pursue legal remedies in the event that they feel that the veterinarian has acted inappropriately in the care of their companion animal or in the management of herd health.1.

It is comforting to note that there have been, relative to negligence actions in other professions, few actions brought against veterinarians for professional negligence; however, the profession is under increasing scrutiny and is becoming subject to much greater accountability than in the past. In the small animal context, the growing importance of and research into the human/animal bond creates deeper legal pitfalls for the practitioner; in a large animal context, the absolute need for completely safe food products has created new avenues for liability related to the transmission of parasitic zoonotic disease. Growing awareness and understanding of the human-animal bond and increased use of pet-facilitated therapy have led to new perceptions of the veterinarian's role as a health worker.

This two-part article will canvass the law of negligence and malpractice in a contemporary veterinary setting and the legal consequences that may arise from the expanded role of the veterinarian in society. In the first part, I will review the general law of negligence and the necessity to obtain informed consent to treatment. In the second part, I will look at the changing role of the veterinarian in society, and discuss the quantification of damages for malpractice. Through the implementation of strict policies relating to these important issues within the hospital, the practitioner and his or her employees may avoid claims arising out of problem cases.

The Law of Negligence

The law of negligence is grounded in the common law of torts, which has as its objective the need to compensate victims of inappropriate conduct. Negligence arises when the practitioner is found to have breached his or her duty of care to a client and the client has suffered damages as a result thereof.

It can be assumed that the veterinary practitioner in North America today implicitly holds himself or herself out to have special expertise and skill in veterinary medicine upon which members of the public are entitled to rely. As such, there is no doubt that a duty of care is owed to the public as soon as you make yourself available to perform veterinary treatment. The breach of that duty arises when something goes amiss; a diagnosis is incorrect, a treatment regime is unsuccessful, or some other unanticipated result occurs.

Not all problems in veterinary practice constitute negligence. This determination is resolved by finding out whether or not your course of action fell below appropriate standards of care.

The Standard of Care

All veterinary practitioners are obliged to exercise the care, skill, and diligence provided by a reasonable practitioner in similar circumstances. This is the objective test of the standard of care that you must discharge to each and every client in your practice. Your actions will be judged in reference to your colleagues in hypothetical situations in which they would be called upon to exercise care in the same or similar circumstances.

There has been much discussion in legal circles as to whether or not there is a difference between the standards of care to be exhibited by the "rural" practitioner versus the "urban" practitioner. The debate has never been addressed in a veterinary context in a lawsuit to date; however, in a human medicine context, there seems to be such a distinction. In my view, such a "locality" rule is appropriate, as the veterinary practitioner in a remote area ought not to be held to the same standards of care as an urban practitioner who has access to state-of-the-art technology and expertise.

Expert Evidence

In virtually every case alleging veterinary malpractice, it is necessary to provide evidence from experts in the field to determine whether or not the standard of care has been breached and whether or not the damages fall outside the area of proximate cause. This, in itself, creates somewhat of a problem for the rural or remote veterinary practitioner as, through such evidence, his or her actions are being adjudged and opined on by an expert in the field.

Limitation Periods

Any action against a veterinarian for negligence is subject to the client bringing the lawsuit within certain time periods, known as limitation periods, which can be found in provincial and state regulatory legislation. The failure to initiate the proceedings prior to the expiry of these dates effectively bars any claim against the veterinarian.

The Veterinarian's Role in Society

The veterinary profession has participated in our society as a health care professional; that is, the profession has been involved in preventive medicine, comparative medicine, food hygiene, control and elimination of zoonotic disease, and other public health issues. The more perplexing issue is the apparent lack of understanding by private veterinary practitioners of their role, responsibilities and obligations in public health concerns. The consumer's increased awareness of apparent benefits of pet-assisted therapy in human health, the move towards preventive veterinary medicine and the intolerance of tainted products from food-producing animals could lead to a much greater role for the veterinary practitioner in the health care sector. The veterinarian will be faced with new legal obligations to owners, employees, nursing home residents and the public generally.

With this health care role comes legal exposure for malpractice, heightening the need for the veterinary professional to practice preventively. New opportunities for practitioners to expand their practices may be available in providing advice on matters relating to human health concerns and matters of public health.

The Calculation of Damages

Damage awards for veterinary malpractice are either compensatory or punitive in nature. Until recently, the compensatory damages which that when patients were either killed or injured were straightforward. In equine and food-producing animal contexts, the animal has an establishable market value and claims for emotional suffering of owners were not successful; in those cases though, the damages could be significant for a valuable racehorse or a herd of dairy cattle. This has always been the case in a small animal context as well. The general rules dictate that, since animals are, in law, property, the calculation of damages was based on the market value of the animal.

Punitive damages are rarely awarded, except if the conduct of the practitioner has been particularly distasteful or malicious. In the United States, one court has indicated that punitive damages would only be awarded where the conduct of the practitioner was evidenced by "an evil hand guided by an evil mind".

The Impact of the Human-Animal Bond

The most controversial area in the calculation of damages appears to be in a small animal context for the emotional distress of pet owners whose pets have been injured or killed through negligence.

The importance of the human/animal bond has been advanced in support for new heads of damages for this distress; damages in a case in Florida in 1964 were contemplated on this basis. In La Porte v. Associated Independents, Inc., the defendant was a corporation engaged in the garbage collection business. The plaintiff was one of the customers of the defendant. One morning, Mrs. La Porte was preparing breakfast, while her miniature dachshund was tethered outside and beyond the reach of her garbage cans. She observed a garbage collector employed by the defendant empty the garbage and then hurl the empty can in the direction of the dog, striking it. The dog was injured and eventually died from its injuries. Having witnessed the incident, the plaintiff became quite distraught to the point of marked hysteria and sought the assistance of her family physician, who later testified that he had been treating Mrs. La Porte for a nervous condition. The court reviewed these facts and indicated that the plaintiff could recover damages for the alleged mental suffering and awarded the plaintiff $2,000.00 in compensatory damages and $1,000.00 for punitive damages. The defendant then appealed this decision arguing that the plaintiff's ability to be compensated for nervous suffering was improper.

The Florida District Court of Appeal held that while the general rule was that in the case of injury or destruction of a companion animal, the market value of the animal should be used to determine the amount of the pecuniary loss. The court then stated the following:

"The restriction of the loss of a pet to its intrinsic value in circumstances such as the ones before us is a principle we cannot accept. Without indulging in a discussion of the affinity between 'sentimental value' and 'mental suffering', we feel that the affection that a master has for his dog is a very real thing and that the malicious destruction of the pet provides an element of damage for which the owner should recover, irrespective of the value of the animal because of its special training such as a seeing eye dog or sheep dog."

As such, approximately 40 years ago, courts started to give some credence to the human/animal bond and were prepared to award damages to a bereaved owner in certain circumstances.

In MacDonald v. Ohio State University Veterinary Hospital the owner of an eight year old German Shepherd initiated an action against the school's veterinary clinic for injury to the dog, the paralysis of the hind limbs, resulting from negligent surgery. The dog eventually had to be euthanised. Negligence was admitted at the commencement of the trial; thus, the only issue for determination by the court was the measure of damages to be awarded. The court, once again, relied on the view that animals were to be viewed as personal property and that the standard for valuation of damages was the market value of the animal; however, the court also indicated that "market value" was to be a guide only. The court went on do discuss the notion of "the standard of value to the owner" and recognized that principle should only be used in "exceptional cases". The court also noted that "sentimentality is not a proper element in the determination of damages caused to animals". In the result, the court upheld the notion of the "standard of value to the owner" principle as the particular fact, in the opinion of the court, warranted such a principle.

In Nicholls v. Sukar Kennels, the owner of a seven year old toy poodle claimed damages against a kennel operator when the operator's own dog "tore off" the left front leg of the poodle. In that case (Iowa, 1966) the plaintiffs claimed special damages for the "intrinsic value" or "special value" of the dog to them. In rejecting the claim for special damages, the court noted that the plaintiffs did not produce any evidence of the "special purpose, or intrinsic value other than his value as a family pet".

In some cases damages for loss of income can be awarded; this is often the case for performance horses rendered unable to compete at the same level as prior to the negligent conduct. Expert evidence is necessary to prove such claims.

Following the LaPorte case referred to above, the Florida Appeals Court allowed damages for mental anguish in a veterinary malpractice case involving the death of a dog during routine treatment for a dermatological condition. The dog's remains were disposed of contrary to the owner's instructions thus making necropsy impossible.

Again in Florida, in 1978 the Florida Court of Appeals in Knowles Animal Hospital v. Wills, allowed a jury to consider the mental anguish caused to an owner in negligent veterinary care when a dog was left unattended on a heating pad and sustained severe burns.

Other jurisdictions have not been as willing to accept the award of damages for mental suffering of the owner. In New York an appeals court rejected such a claim in Jason v. Park. . Similarly, in 1996 the Iowa Supreme Court made its ruling in the Nicholls case above rejecting the plaintiffs' claim that they had a "humanistic" relationship with their pet. Such claims have also been rejected in Illinois in Jankosi v. Preiser Animal Hospital Ltd. where the court held that the loss of companionship of the animal did not stand as an independent cause of action.

Impact of the Human/Animal Bond

Volumes of materials have been written analysing many aspects of the human/animal bond. In particular, the use of animals in pet-assisted therapies in a human medicine context is well documented. Veterinarians, on a daily basis, continue to underscore the importance of the bond in offering preventive medical advice and "wellness" therapies on the basis that the companion animal is truly a "part of the family". Advertising campaigns are mounted by veterinary interest groups and veterinary suppliers that direct the consumer to consider the importance of the animal's well-being in the owner's life. Effective marketing for the small animal practitioner includes embracing the pet as a "family member"; this is particularly true in practices that offer grief counselling for owners.

The veterinary practitioner must appreciate that as the scientific studies continue to provide results that draw causal links between human health and the continued good health of companion animals, the risk and exposure of greater damage awards is a reality in negligence cases. It will, in my view, become increasingly difficult to argue that the appropriate damage award is restricted to the value of the animal; as a result, veterinary malpractice insurers will require the payment of higher premiums to reflect the increased exposure. In addition, litigation involving pet owners will likely increase as greater damage awards will be at stake.

Statutory Evolution

There is clear evidence that the human/animal bond is now the subject of statutory recognition in various forms: municipal ordinances relating to animal control issues in both San Francisco and Boulder have been amended in recent years to change the words "animal owners" to "animal guardians" - with respect, I suggest that the term "guardian" has a distinctly different connotation than that of "owner" suggesting a level of care is required because of the dependency of the animal. As well, the States of Maryland, Tennessee and Oregon have each placed bills before their respective state legislatures to limit the damage awards that might be made available by a court to an animal owner. In the Oregon bill the quantum of damages is proposed to be limited to $250,000 for non-economic losses. As such, I respectfully suggest that this represents further evidence of the recognition of the importance of animals to their owners and, indeed, the influence of the human/animal bond.

Avoidance of Claims

Most attorneys would agree that the very best way to defend a claim of veterinary malpractice is to avoid the claim in the first place. In this regard, the prudent practitioner or veterinary hospital manager will adopt the "Three C's of Malpractice Avoidance": competency, communication and compassion.

It goes without saying that one can avoid claims of malpractice if one practices prudently and maintains his or her competence. The failure to meet the standard of care is a precondition to any veterinary malpractice claim - to practice competently and meet the standards is a complete defence. Practitioners should ensure that they continue to attend continuing education lectures, read current journals and ensure that their staff are maintaining the appropriate standards.

The art of veterinary communication requires one to obtain the informed consent of the owner prior to undertaking a course of treatment. Too often the failure to properly communicate the risks of a procedure results in a claim of veterinary negligence.

Finally, when an unfortunate and unexpected result occurs in practice, the practitioner should ensure that he or she demonstrates a high level of sincere empathy and compassion for the client's loss. Sometimes the client is merely wanting a form of acknowledgement of the loss in order to move forward.