Veterinary Malpractice and What It Means To the Practicing Veterinarian

This comprehensive series of articles on Veterinary Malpractice is broken down into 3 separate blog postings.

• The first article in the series discusses the four elements that must be proven in order for a client to succeed in a veterinary malpractice suit.

• The second article is a brief history of Veterinary Malpractice and how it has evolved.

• The final article deals with the implications of Veterinarian Malpractice and provides some important tips for avoiding a veterinary malpractice or negligence suit.

Part 1 – What Constitutes Veterinary Malpractice?

Written by:
Mark Feltz, DVM
Monica Feltz, J.D., LL.M.

Although veterinary malpractice is often couched in similar terms as medical malpractice, there are many key differences to bear in mind that will help you better understand the development and implications of this evolving area of law-veterinary law-and how you can best protect yourself against potential veterinary negligence suits.

Veterinary Malpractice is a New Liability

For one, it is only recently that veterinarians have even become subject to state malpractice actions. Many states still do not explicitly include the profession under their malpractice statute, thereby rendering certain legal consequences and costs inapplicable to you and your veterinary hospital. However, the more recent trend includes veterinarians as within the circle of professionals to be held liable for malpractice, and thus, the new term, “veterinary malpractice” was born.

Veterinarian Malpractice: Should Pets Have Value in the Law?

Second, animals are not people, and this difference is strongly codified and upheld through the law. Although pet owners and animal rights activists are increasingly pleading otherwise, the law is hesitant to move away from characterizing animals as anything more than mere property. This thereby values an animal – and its loss in an owner’s life – according to the store sticker price rather than perhaps a more accurate value that considers companionship and the sentimental value of the pet.

The Future of Veterinary Malpractice

However, recent trends and court decisions are changing the game. Fido and Fifi are pleading their case as more than mere property, and both pet owners and vet malpractice lawyers alike are anxiously pushing for these new developments. Many critique veterinarians for relying on sentimental value when setting their prices, while simultaneously dismissing similar sentiments when confronted in a court room. Thus, recent state-wide developments in the field of veterinary law have placed veterinarians under a high-powered microscope, and the price tags associated with faulty actions – or non-actions, or veterinary negligence– are rising. Researching your state’s interpretation of veterinarian malpractice, and understanding how to best avoid these claims, could prove invaluable to you and your practice.

What is Veterinary Malpractice?

In essence, veterinary malpractice occurs when an injury to an animal results from an act or omission that is considered to be within the professional knowledge and toolkit of a veterinarian. However, in a vet malpractice suit, you are not being compared to a super- veterinarian who ensures the recovery of every animal he or she treats, but rather a competent, average veterinarian in the given community.

Ultimately, there are four elements that must be proven in order for a client to succeed in a veterinarian malpractice or veterinary negligence suit:

Element #1: Duty of Care

It must be proven that the veterinarian has accepted responsibility to treat the animal in question. Though there may be a certain ethical duty to treat a pet in an emergency situation, a veterinarian is never obliged under the law to provide care to an animal. Thus, the veterinarian must readily assume the duty of care for a potential veterinary malpractice suit to attach.

Element #2: Standard of Care

After proving that a legal duty of care exists, it must be established that the veterinarian’s actions, or lack thereof, falls below the professional standard of care typical to a veterinarian. However, there is some dispute as to how this standard is most appropriately gauged. Typically, an expert witness is used to establish that the veterinarian did or did not act with reasonable skill, attention, and diligence expected of an average veterinarian in the community.

Although the standard usually takes into account the geographic location of the veterinarian, with today’s easy and accessible methods of communication, there is debate as to whether the character of a community is still as relevant as it once was, in determining whether the veterinarian strayed from his or her duties. In essence, the concern rests in holding a rural veterinarian to a different-and often lower-standard than that of, for instance, a metropolitan veterinarian. A mindset shifting away from geographical standards is evidenced through evolving state laws, where either standards of the community comprise only one of many factors, or where a “similarly situated” standard is used to take into account various considerations, such as characteristics of the community, types of facilities available, and the nature of treatments and veterinary specializations involved.

Nevertheless, and irrespective of its potential shortcomings, geographic and community characteristics still serve as an important limitation on the current standard of care to which veterinarians are being judged in a veterinary clinic malpractice claim.

Element #3: Cause of Injury

After a duty and standard of care are both established, it must be proven that the veterinarian’s failure to conform to this standard actually caused the injury or veterinary malpractice in question. Causation may be the most tricky element to prove since the plaintiff must establish not only, that the actions or failure to act led to the injury; but also, that there was no intervening or independent source that interrupted or called into question the chain of events claimed to have caused the pet’s injury.

Elements #4: Damages

Lastly, the injury must result in damages to both the animal and the owner, who stands as the actual party to the suit. It is this final element in veterinary malpractice cases that drives the heart of the current debate. Recent critiques and developments in animal and veterinary law are having pet owners, animal activists, and the veterinary community all talking about what type of compensation is appropriate in a day and age of sue-happy Americans who increasingly treat their animals as family.

The second article in this series will be posted on June 12, 2012. We will announce the posting on Twitter and on our Facebook page.

Copyright © VetNetwork, LLC / Mark Feltz, DVM, Monica Feltz, J.D., LL.M.
VetNetwork – Marketing Solutions for Veterinarians and Veterinary Hospitals
www.vetnetwork.com
603-743-4321