WHAT IS A VETERINARY MALPRACTICE CLAIM?
Perhaps an easier way of understanding a veterinary malpractice claim is by explaining what it is not. When someone sues a veterinarian, unless the animal is a farm animal or champion breed, the lawsuit is generally not about money. Veterinarians, or insurers who act on behalf of them, can not expect to settle a claim by simply throwing some money at a plaintiff.
An increasing number of people consider their pets family. Whether this is because of a growing number of ”empty nesters” or of people without children of any age is uncertain. However, what is clear is that people unconditionally love their dogs and cats, and will do whatever it takes to correct what they see as a wrong done to their companion animal.
In actions arising from injury or death of an animal, the types of claims asserted against veterinarians are usually in negligence and breach of contract.
Just as in a human medical malpractice claim in negligence, a plaintiff suing a veterinarian must establish that: (a) the veterinarian, through act or omission, failed to give the standard of care that a reasonable veterinarian would give in similar circumstances; (b) the veterinarian’s breach of the standard of care (or negligence) caused the plaintiff ’s/animal’s injuries; and (c) as a result thereof, the plaintiff suffered damages.
Breach of contract
In a breach of contract claim against a veterinarian, the contract at issue is for the provision of veterinary services. And specifically that these services will be performed according to a standard of care that is in accordance with the conduct of a prudent and diligent veterinarian in similar circumstances. A breach of the standard of care is a fundamental breach of the contract. The plaintiff also needs to establish that this breach caused the plaintiff ’s loss or damage. The ability to prove foreseeability of this damage is especially important in a breach of contract claim against a veterinarian.
Other causes of action
Plaintiffs can also sue veterinarians for bailment, conversion, products liability, and for other reasons. Regardless of the cause of action, a veterinarian will not be excused from having committed malpractice or a wrong by the fact that she performed the service for free.
A gross misconception is that companion animals are not worth much, if anything, financially.
When people sue, or make a complaint to the professional regulatory body, against a veterinarian, they are often driven by emotions and by a sense of justice. They are not seeking simple compensation for the veterinary fees they incurred; rather, people are ultimately seeking some form of relief for mental distress or loss of companionship.
The fundamental principle on which damages are awarded at common law is that the injured party is to be restored to the position—and not just the financial position—in which the party would have been had the actionable wrong not taken place. Anguish and distress have been long recognized in the law of negligence, and more recently in breach of contract cases (so long as the loss was foreseeable).
The law around “anguish and distress” or “mental distress” is important in the context of veterinary malpractice lawsuits because this provides an avenue for the courts to make damage awards that are significantly higher than only the market value of the companion animal, which would otherwise be nominal.
Technically, the law considers animals as property. I know of no cases in Canada to date, unlike in American jurisprudence, in which courts have awarded damages for mental distress or for loss of companionship against veterinarians. This is likely because (a) these types of damages have not been claimed at all, and (b) veterinary cases have traditionally not proceeded to the trial stage and have often been settled out of court.
However, courts are starting to recognize that companion animals are not just things, but that they occupy a special place somewhere in between a person and a piece of personal property. I predict that this important principle will change the way veterinary malpractice claims are prosecuted and defended.
Canadian courts (outside of British Columbia) have already made awards for loss of animal companionship, including in the following circumstances: loss of dog as a result of another dog attack (approximately $25,000), loss of dog as a result of negligent boarding (approximately $4,000), anguish and distress over the possible amputation of a cat’s tail ($300). Although none of these cases have been in the context of veterinary malpractice, they are indicative of the way courts are beginning to view the importance of companion animals in family homes. Surely, if people are awarded significant sums of money for being disappointed in their vacations, and for similar intangibles, it is conceivable, and quite likely, that we will see significant damage awards for injury to or loss of companion animals as a result of veterinary negligence.
WHAT TO EXPECT IF YOU DECIDE TO SUE A VETERINARIAN
In British Columbia, plaintiffs have a choice to sue in either Small Claims or Supreme Court. Small Claims actions involve claims worth $25,000 or less.
The Small Claims process is generally more user friendly, faster, and less expensive. There are fewer procedural steps required, and the rules of evidence are generally more relaxed. Once a claim is filed and served, the defendant has 14 days to file a defence. The plaintiff (or claimant as it is referred to at that level of court) then has the choice of filing a reply to the defence. The case then proceeds to a settlement conference or mediation within three or four months. If the case is not settled at that point, the matter is referred to trial within the next six or more months. There are no examinations for discovery or other discovery procedures. There are also rarely interim applications made to Court. Overall, it takes about one year, or slightly longer, for a Small Claims action to be resolved.
By comparison, a Supreme Court action can take approximately five years or longer to be resolved. The Civil Rules of Court set out the procedures to follow, and the rules of evidence are far more strict than in Small Claims. Once a claim is filed and served, the defendant has 21 days (assuming the veterinarian resides in British Columbia) to file a defence. The plaintiff then has seven days to file a reply to the defence. The parties then proceed to exchange documents, after which examinations for discovery are held. Discoveries are essentially interviews conducted under oath and are used to obtain admissions and discredit witnesses at trial. There are usually multiple Court applications made during the lawsuit. If the matter is not settled, the only resolution to the dispute is trial.
One of the main advantages of a Small Claims action is that it is generally faster and less expensive for both parties. The losing party also does not have to pay the winning party’s legal costs, although disbursements (such as expert reports) may be awarded to the winning party.
The major disadvantage of Small Claims, and the corresponding benefit of a Supreme Court action, is that the Small Claims Court does not have inherent jurisdiction. This means that the Court is limited in what it can award both legally and in dollar amount.
Intuitively, it seems that veterinarian malpractice suits should be brought in Small Claims only as the damage awards would likely not exceed $25,000. However, for plaintiffs who are pursuing novel claims, such as mental distress for loss of companionship, Small Claims Court does not provide the necessary tools for developing and advancing such issues.
ISSUES THAT ARISE
One of the issues that always arises is that once a lawsuit is filed (regardless of the level of court), all documents that are filed therein are open to the public. This can be a very intimidating and potentially embarrassing factor for both a plaintiff and defendant if privacy is a concern.
Obtaining a credible expert report is key to both the prosecution and defence of a veterinary malpractice claim. It is generally much harder for a plaintiff to obtain one in British Columbia as many potential veterinary experts do not want to testify against a potential business referral in a province that is as small, relatively, as British Columbia.
The purpose of the plaintiff obtaining an expert report is to establish, through expert testimony, what is the appropriate standard of care and that the defendant’s breach of that standard caused the animal’s injury or death. The purpose of the defence expert report is to refute and poke holes in the plaintiff ’s expert opinion.
Contributory negligence is a defence for a veterinarian.
As the facts develop throughout the case, it sometimes becomes evident that the plaintiff contributed to the damage or loss of the pet’s injury; usually by ignoring the veterinarian’s advice for aftercare. Although this may not absolve the veterinarian fully, this defence can apportion the amount of damages awarded between the plaintiff and defendant.
Another common issue is that of informed consent. Plaintiffs can claim that the veterinarian did not fully and properly inform the plaintiff of the various types of treatment and care available and/or that the veterinarian did not fully or properly inform the plaintiff of the associated risks (even if they are remote). As a result, the plaintiff ’s consent to the treatment was not an “informed consent” and the veterinarian committed an act (or omission) of negligence.
IS A LAWSUIT WORTH IT?
I am also often asked whether it is worth pursuing a veterinary malpractice suit, considering the high legal costs and the uncertainty of success and damage awards. This is almost impossible for me to answer as it really depends on what is driving the plaintiff to pursue a claim. Is it only financial compensation, or is it for obtaining some kind of justice in memory (and honour) of the companion animal? Success is never a guarantee, and even if a claim is successful, it is too early to tell how much justice (whatever that means to you) will be achieved and whether any damage awards will be awarded.
We should keep in mind that there are many good and well meaning veterinarians out there. Unfortunately, mistakes can happen, but this does not necessarily mean that the veterinarian was outright negligent. Lawsuits are generally very stressful – not to mention expensive – and one must really take an honest look at whether this is something they are ready to face.
At the end of the day, we all want to do what is best for our companion animal. Whether this means suing, or trying to somehow make amends with the veterinarian will depend on the individual.
Originally Published Oct / Nov 2013
By: Rebeka Breder