Litigation

From Cat

'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[1].

Elements of malpractice

Here is what has to be proved:

  • The pet 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 pet became ill or died as a result of the vet's failure to take the required action.

Proof of malpractice

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.

References

  1. Article courtesy of Dog bite law