Veterinary malpractice law has evolved significantly in the past 50 years. This evolution has tracked an evolution in the way in which the law views pets, from mere property to a specialized category of property with subjective value, akin to “heirlooms, family treasures, and works of art, or family heirlooms” (Houseman v. Dare), or even as companions and protectors (Brousseau v. Rosenthal). The effects of this evolution have significantly impacted veterinary malpractice cases. For a more extensive review of the legal issues, see “Detailed Discussion of Veterinary Malpractice” by David S. Favre, Michigan State University College of Law, which: “provides a short history of the development of veterinary malpractice as a cause of action and also explores the elements of a malpractice suit. It further delineates the concepts of standard of care, proximate cause, and res ipsa loquitur. Defenses to malpractice actions are also discussed.” The overview of case law presented herein should be considered for informational and historical purposes only, and is not intended as legal advice. There are a number of key legal issues that must be resolved in any malpractice case. The first is whether the veterinarian’s actions were within the relevant standard of care. The second is whether the veterinarian's actions were the "proximate," or legal cause of the pet's death or injury. If these first issues are resolved in the plaintiff’s (the pet owner) favor, the court must then decide damages. Because pets have long been considered property in the eyes of the law, as in a car accident that totals a vehicle, or other types of property damage cases, the question of damages has been resolved according to the market value of the animal. Since the cost of litigation is high, and the market value of most animals, even pedigree animals or large animals such as horses, often pales in comparison, it was rarely worth the cost to bring a medical malpractice case as long as this view of the value of pets prevailed. istock/thinkstock How the law views pets has evolved in the past 50 years. Veterinary Malpractice Cases: Brousseau v. Rosenthal In the 1980s, courts began to award larger amounts for the death or injury of pets. In Brousseau v. Rosenthal, an 8-year-old German Shepherd mix died at a kennel. The court summarized: “This small claims action presents the question of how to make plaintiff whole in dollars for the defendant bailee's (a boarding kennel) negligence in causing the death of plaintiff's dog. While the dog was a gift and a mixed breed and thus had no ascertainable market value, the court contravened common law principles and assessed the dog's actual value to the owner in order to make the owner whole. While resisting the temptation to romanticize the virtues of a ‘human's best friend,’ the court stated it would be wrong not to acknowledge the companionship and protection that Ms. Brousseau lost with the death of her canine companion of eight years.” In calculating damages, the court observed, “Although the courts have been reluctant to award damages for the emotional value of an injured animal … the court must assess the dog’s actual value to the owner in order to make the owner whole.” The court considered several aspects of the owner’s relationship with the dog in order to accurately account for her loss. The court primarily noted the owner’s loss of companionship: “The court finds that plaintiff has suffered a grievous loss. The dog was given to her when it was a puppy in August, 1970 shortly after plaintiff lost her husband. TO this retired woman who lived alone, this pet was her sole and constant companion…As loss of companionship is a long recognized element of damages in this state…the court must consider this as an element of the dog’s actual value to this owner.” However, the court found still another component of the dog’s value: “Plaintiff must also be made whole for the protective value to her of this part-German Shepherd…The testimony indicates that plaintiff relied heavily on this well-trained watch dog and never went out into the street alone at night without the dog’s protection. Since the dog’s death, plaintiff does not go out of her apartment after dark. In addition, her home was burglarized and a watch given to her own retirement was stolen while she was watching television in her own back bedroom. Had the dog been alive, no one would have entered her apartment undetected, for the dog would have barked vigorously at the mere sound of a presence in the hallway outside her apartment.” Although the court founds its decision in extensive case law, it seems to be aware of its departure from traditional valuations of animals in tort claims. It concludes: “Resisting the temptation to romanticize the virtues of a “human’s best friend”, it would be wrong not to acknowledge the companionship and protection that Ms. Brousseau lost with the death of her canine companion of eight years. The difficulty of pecuniarily measuring this loss does not absolve defendant of his obligation to compensate plaintiff for that loss, at least to the meager extent that money can make her whole.” Even in this case, taking these factors into account, the court only awarded plaintiff $550 plus costs and disbursements. However, by the 1990s, higher damages based on these same considerations had become more common. In Rappaport v. McElroy, a 1995 case, the plaintiff asked for damages in the amount of $25,000 when a veterinarian treated his Serval cat with a chemical known to be toxic, causing the death of the cat. Although in this case, the animal in question was an exotic, and therefore its market value was higher than the Shepherd mix in Brousseau, the settlement amount was significantly higher: $15,000. As courts have increasingly come to recognize the value of pets to humans, a value that exceeds mere market value, higher damages now often warrant the cost and worry for owners in bringing a claim against a veterinarian they believe guilty of malpractice. As claims become more common, and damages rise, defending against malpractice claims becomes a more expensive and necessary concern for veterinary practices. As with many other categories of professionals, veterinarians commonly purchase professional liability (malpractice) insurance to guard against the expense of defending against such claims. istock/thinkstock Cases involving medical or scientific issues or decisions of a professional veterinarian acting in his or her professional capacity are malpractice cases. Find a Knowledgeable Attorney in Your Area to Discuss Veterinary Malpractice Claims Malpractice is a state law claim and thus the issues and standards are determined by each state’s case law. If you have questions about the professional standard of care you are expected to follow, or about any specific claims against you, you should contact your state bar association to locate a qualified attorney in your area. Malpractice differs from tort law claims such as negligence in that it applies only to professionals. Cases involving medical or scientific issues or decisions that should be within the sphere of knowledge of a professional veterinarian acting in his or her professional capacity are malpractice cases. Often expert witnesses are a (costly) necessity to establish for the court the professional standard of care, and whether it was met in a particular case. However if, for example, a veterinarian also runs an equestrian boarding facility or kennel, as in the Brousseau case discussed above, and something happens to an animal in her care in her non-professional capacity, this would more properly be a negligence claim, applying a reasonably prudent person standard (See Elephant, Inc. v. Hartford Accident & Indemnity Co., 239 So.2d 692 (La. 1970). It may therefore be necessary to speak to an attorney knowledgeable about veterinary cases, as well as other types of tort claims. How Your Employer’s Insurance Policy May Not Cover You Individually Veterinary businesses, as well as individual veterinarians (even those employed by a veterinary practice) have a need for professional liability insurance. As in other types of negligence cases, employers may be found liable for the actions of employees acting within the scope of their professional duties. Therefore, the owner of a veterinary practice may purchase insurance that will provide legal defense to the business against claims based on the negligence of employees. However, the professional veterinarian employee must have a professional liability insurance policy in her name to defend herself against malpractice claims in her individual capacity. Even when a veterinary practice provides professional liability insurance to each employed veterinarian as a benefit of employment, this insurance policy will likely not cover actions outside the scope of employment, such as volunteering or other part-time work. Veterinary Malpractice Insurance Policy Considerations Litigation is incredibly expensive. Even in states that encourage arbitration or other alternative forms of dispute resolution, costs for attorney fees, court fees, arbitrator fees, and expert witnesses can be staggering. For this reason, insurance companies have an interest in settling cases as early and as inexpensively as possible. However, early settlement may not be ideal for a veterinarian convinced she has followed the applicable standard of care. Countering the costs of defending against a malpractice claim, there may be a reputational cost for choosing not to defend against a claim. Veterinarians that wish to fight the good fight to defend their reputations may find this desire thwarted by a so-called “hammer clause” in their insurance policy. A hammer clause is a common tool that allows an insurance company to shift the burden of damages awarded above a recommended settlement to the defendant veterinarian. For example, a veterinarian who is being sued receives an offer to settle of $15,000, which her insurance company considers reasonable and recommends that she accept. She instead declines and chooses to go to court, but loses the case and damages are awarded against her in an amount of $25,000. In this event, her insurance company may invoke its hammer clause to hold her personally responsible for paying the amount of damages and attorney fees beyond the amount for which the company could have settled the case. The hammer clause is often accompanied by a consent to settle clause. This requires that the company obtain the veterinarian’s consent to settle the claim. This leaves the decision to take the risk of going to court in the veterinarian’s hands, with the understanding that she may be personally responsible for paying amounts beyond a settlement offer, if that offer is recommended by her insurer (per the hammer clause). Finally, a policy may have limits on the costs and attorney fees that will be covered. If you incur extensive court costs and attorney fees over several years defending yourself against a claim, you may have to pay some of these amounts personally if they exceed your policy limits. Some policies will include court costs and attorney fees in addition to policy limits. The Role of Emotions in Veterinary Malpractice Insurance Cases Because the rules governing malpractice litigation are based in case law, they can often be complex and perhaps even counterintuitive. A veterinarian or practice owner with questions about malpractice claims or insurance coverage should therefore carry out extensive research to support decision-making. As previously mentioned, one can contact the state bar association for a list of knowledgeable attorneys. Professional associations can also suggest resources such as recommended insurers and further reading. As professionals who have chosen to dedicate their lives to the care and treatment of animals, veterinarians no doubt appreciate the value of these animals to their human companions, and the complex emotional reactions the loss or injury of animals can bring. Unfortunately, these emotions may find expression in litigation and veterinarians should do the necessary research to protect themselves.
