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Legally Speaking

 

Issue: April, 2006
Author: Patrick T. Holscher

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Pets and Professional Liability: The Law and the Veterinarian

The state of Wyoming regulates 33 professions, including veterinarians. See Title 33 of the Wyoming Statutes. All of these professions or occupations, which range from Dance Hall Operators (W.S. §33-13-101, et seq.) to Uniform Athlete Agents, (W.S. §33-44-101, et seq.), are subject to professional licensure or certification standards.

This expansion of “professions” is relatively modern. Classically, there were only three professions, those being the ministry, the law, and medicine. Animal health care, like human dental care, was a field practiced by those who had an interest in the topic due to other practical reasons. In the case of animals, the animals’ owners or farriers did most early veterinary-type work. Animals were an indispensable part of the economy in nearly every developed country, but keeping them fit was mostly the task of their owners.

The first changes came about in the late 1700s when the first organizations and schools dedicated to veterinary science sprang up at the same time that medical science began to develop out of the primitive state it had existed in for centuries. The School of Veterinary Medicine in London began offering classes in 1791. In 1796, the British Parliament required the school to supply veterinarians to the British Army, due to the public outrage over the fact that more horses were lost to the British Army by ignorance and bad farrier techniques than to Britain’s enemies.

Progress, however, was generally slow, and veterinary science did not really begin to take on the aspects of a full profession until the late 19th century. The rise of professionalism in the United States coincided, not surprisingly, with increased attention in the country to agriculture, the field in which most veterinarians concentrated their practices until the mid 20th century.

Veterinary science has come a long way since then. Now animal health care, particularly small animals, is a multi-million dollar industry. Americans lavish more money on pets every year, and the variety of products available for pets has expanded to a degree hardly imaginable even a decade or two ago. Large animal veterinarians have become critical to the livestock industry in a way they were not even fifty years ago.

Moreover, the development of a fully professional veterinary science has resulted in the incorporation of veterinarians in the country’s health care system in ways the public can hardly imagine. The federal government has employed veterinarians in significant roles since the Civil War. Concerns regarding public health in the early 20th century have greatly increased the number of federal veterinarians. The Department of Agriculture, for example, retains a significant veterinary presence in the Animal and Plant Health Inspection Service. A provision of the U.S. Code provides that:

The Secretary of Agriculture may develop a program to maintain in all regions of the United States a sufficient number of Federal and State veterinarians who are well trained in recognition and diagnosis of exotic and endemic animal diseases.

The state of Wyoming has expanded the role of veterinarians in various capacities. In addition to having a State Veterinarian, the role of veterinarians in Wyoming extends from veterinary laboratories to playing a role in various health and animal regulatory systems. Veterinarians, or veterinary related entities, have a presence on a variety of state boards, including the Wyoming Animal Euthanasia Technician Certification Board and the Animal Damage Management Board. Suffice to say, veterinary science is a profession that is present in our day-to-day lives, and not just when we take the cat or dog in for shots.


The Veterinarian’s Exposure to the Courts

At one time, veterinarians were not exposed to the threat of law suits, unlike other health care professionals. The old saying was that “. . . nobody ever sues their dentist or veterinarian.” Well, that’s no longer the case. Veterinarians do get sued, if still fairly rarely in Wyoming, and for those who have veterinarians as their clients, it’s advisable to note their risks.


Veterinary Malpractice

Veterinarians, as mentioned above, are a licensed profession, and as such are subject to the same general standards in their fields as doctors or lawyers. That is, they are licensed professionals, who are deemed to be subject to certain standards of knowledge within their professions. “. . .[A] veterinarian is a member of a learned profession and thus capable of committing professional malpractice.”

Malpractice actions against veterinarians in Wyoming are still fairly rare. Such actions are seldom taken to trial, and so far have never been taken up to the appellate level in the context of a purely malpractice case. Still, they can and do occur.

While no Wyoming case exists on the topic, it is probably safe to assume that the Wyoming Supreme Court would apply the same standards to veterinarians as those of physicians. This is the general rule in the locations that have ruled upon the topic. “. . .[V]eterinarian negligence cases are to be analyzed under the same standard applied to physicians and surgeons in medical malpractice cases.” “Several courts have held that the body of law developed in medical malpractice actions also applies to veterinary malpractice actions.... Because of the vast numbers of medical malpractice cases and comparatively few veterinary malpractice actions, the latest theories of recovery, arguments, jurisprudential trends, including the applicable standard of care, and techniques for presenting evidence tend to become manifest in the medical malpractice cases, but apply to veterinary malpractice actions as well.”

Like physician malpractice cases, a veterinary malpractice plaintiff normally requires an expert in the field in order to maintain the case. Often courts ruling on this issue cite medical malpractice cases, as the Nebraska Supreme Court did in a case involving alleged veterinary malpractice in the treatment of race horses, when it stated: “Proximate causation requires proof necessary to establish that the physician's deviation from the standard of care caused or contributed to the injury or damage to the plaintiff. Where the character of an alleged injury is not objective, but rather, subjective, the cause and extent of the injury must be established by expert medical testimony. Subjective injuries may be inferred only from their symptoms and, consequently, require medical expert testimony to determine the cause and extent thereof.”

Given that the same standards will apply to veterinary and medical malpractice cases, presumably the locality rule would not apply to veterinary malpractice any more than it does to medical malpractice. Under the locality rule, the law formerly judged physicians according to local standards, which probably made sense before communications and transportation reached their current advanced state. The same logic that applies to the general abolishment of the locality rule as to physicians’ standards would presumably apply to veterinarians. Some courts have ruled in this fashion, as the Louisiana Supreme Court did when it flatly stated, “The locality standard of care is inapplicable to a veterinary specialist.”

However, given the nature of veterinary specialties and practice in the rural West, it is at least reasonable to speculate on whether the locality rule might, or should, apply in some instances. The standards of practice applicable to small animals are probably justifiably relatively uniform. However, perhaps the law might justifiably regard those that apply to large animals and livestock in another fashion. At least arguably, the standards of practice that apply to livestock in the rural West, where the owners still administer a great deal of veterinary care themselves, or even assist the veterinarian, may be quite different from those in other areas. A person familiar with livestock care in Wyoming, for example, might be shocked by the level of veterinary care depicted in James Herriot’s All Creatures Great and Small series. No Wyoming cattleman could afford to call out a veterinarian for the ailments the English farmer did. Perhaps this problem is what the Iowa Supreme Court had in mind when it abrogated the locality rule in veterinary malpractice cases, while noting, “The standard of care practiced in the particular community or like communities may be one of the elements to be considered but it is not conclusive. We are convinced the correct standard of the veterinarian's care should be held to that exercised generally under similar circumstances.”

As noted above, so far, trials in veterinary malpractice cases are fairly rare, and presumably veterinary malpractice lawsuits, and perhaps even claims, are as well. This is somewhat surprising, in this litigious age, because veterinarians are exposed to the human emotions of their human clients in a way that perhaps only physicians are otherwise exposed to. Veterinarians are perhaps even more uniquely exposed because humans can be more irrational about their animals, large and small, than about their fellow human beings.

Some examples will serve to illustrate this risk. For example, in one suit I defended several years ago, a dog’s owners brought a dog into their veterinarian that was suffering from an advanced case of parvo. By the time the owners committed the dog to the veterinarian’s care, the case was so advanced, and the dog’s chances of recovery were nearly non-existent, as the veterinarian informed the owners. Nonetheless, he accepted the dog and stayed up most of the night caring for the severely ill dog, which in fact died. The owners, devastated over the loss of their dog, which had been their constant companion, and which they took into work each day, could not see past the dog’s death and sued the veterinarian. In this instance, emotions likely played a large part in bringing about the lawsuit.

In another instance, I defended private practice veterinarians in a suit brought against them and the State Veterinarian by a pro se plaintiff over the euthanization of a horse. While the facts were unusual and complicated, it seemed apparent from limited discovery that the plaintiff’s attachment to a particular horse was the motive for the suit, at least in part.

That this does not occur more often is fairly amazing. Perhaps it is a tribute to attorneys abstaining from filing emotion-based suits. Perhaps this is one of those areas where lawyers should receive credit for not basing suits on their clients’ passions or emotions.


Veterinarians Exposure for Outside Services

Most professions require service on various boards or governmental entities. Veterinarians are, perhaps, exposed to this far more than other professions. As discussed above, and while the public hardly notes it, the state and federal health and regulatory systems utilize veterinarians to a great degree. Several agencies and boards use veterinarians in activities as diverse as protecting animal populations from infectious brucellosis to the inspection of meat.

Given the wide-ranging nature of veterinarian service, it is common to find veterinarians serving as contractors to agencies or on various boards. Veterinarians are exposed to suit in this manner as it provides a ready way for a third party to be discontented with them. The bonds that exist between a veterinarian and his client do not exist in this instance. Veterinarians, while they should be lauded for being willing to undertake such service, need also be mindful of the added exposure it may subject them to in some instances.

Again, some examples of this may serve to illustrate this. In Amrein v. Wyoming Livestock Bd., 851 P.2d 769 (Wyo. 1993) an owner of a horse sued two contract veterinarians in private practice, together with the State Veterinarian, over the care and ultimate euthanasia of a horse that had been seized as part of a criminal investigation. The allegations could be roughly characterized as malpractice claims, but the point here is that the veterinarians would not have been sued at all but for the fact that they had contracted with governmental bodies to provide services. Their private insurance carriers provided their defense, not the contracting governmental entities. The trial court dismissed the cases against all the veterinarians, including the State Veterinarian, due to jurisdictional and pleading defects. Other examples could be given of veterinarians being included as named parties in suits, if only for purposes of proper pleading, where they were serving on state boards, as they frequently do. This, however, presents a considerably different picture, as their own assets are generally not at risk.


Criminal and Regulatory Concern

All professions have some heightened exposure to potential criminal or regulatory violations, although that exposure varies considerably according to the profession. While it would not seem to be a concern at first, the wide scope of veterinarian activities perhaps places them at greater risk to incidental violations than many other professions.

Listing the range of potential areas in the criminal law or regulatory field that a veterinarian should be concerned about is beyond the scope of an article. Suffice to say, a field that deals with drugs, diseased animals, and occasionally dead ones, is going to raise a variety of concerns. Some of the circumstances that can arise can be surprising, to say the least. I am, for example, aware of one veterinarian who nearly ran afoul of the federal government when a horse he went to treat died prior to his arrival on Forest Service land. He undertook to bury the horse with the assistance of some fellows, but found that the federal government took exception to the act. This worked itself out, but it is an example of one of the widely varying circumstances that can develop.

For the legal practitioner, therefore, it is best to approach any unique endeavor undertaken by a veterinarian, or any specific topic that they might approach you with, as a singular field of enquiry in and of itself. No one set of answers will ever apply, as the profession’s activities are so wide and varied.


Varied Profession, Varied Concerns

Lawyers and doctors existed at the country’s founding when veterinary science was mostly administered by farmers. From that humble beginning veterinary science has evolved to become one of the most vital professions in the country. We tend to think of them as the men and women who take care of our cats and dogs, but in truth, our systems charge them with oversight of many aspects of public health that it could not replace them with any other single profession. Food inspection, care of livestock, arresting the spread of disease in animal, and human populations, all entailed the presence of veterinarians.

Fortuitously for veterinarians, the age of frequent litigation does not seem to have greatly affected them. However, this does not mean it has not touched them at all. Moreover, their widely varying activities give them wide exposure to potential problems. For legal practitioners with veterinarian clients, both the state of the civil law, which highly resembles that pertaining to physicians, and their exposure to suit for their wide-ranging activities, should be kept in mind.


Patrick T. Holscher received his Bachelor of Science in geology from the University of Wyoming in 1986, and his JD from the University of Wyoming in 1990. He is admitted to practice in all state and Federal Courts in Wyoming, as well as the 10th Circuit Court of Appeals and the Shoshone and Arapahoe Tribal Court of the Wind River Reservation. Holscher is a partner in the Casper law firm of Schwartz, Bon, Walker & Studer, LLC.


Copyright © 2006 – Wyoming State Bar

     

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