Can I charge my Veterinarian with Malpractice?
The following article is based on information found at http://www.petconnection.ca/veterinary-malpractice/
Many pet parents wonder if it is possible to sue a veterinarian if something goes wrong while they provide care for their furry friend.
What is a veterinary malpractice claim?
A veterinary malpractice claim is generally not about money (except for farm animals and champion breeds).
Veterinarians or their insurers cannot expect to just throw money at the pet parent to settle a claim.
More and more people see their pets’ as family. We unconditionally love our pets and if something goes wrong we expect the veterinarian to do his or her best to help. If the pet is injured or passes away while under a veterinarians care the types of claims are usually about negligence or breach of contract.
It is up to the pet parent to prove that
- a veterinarian through his/her actions or by omission failed to provide the standard of care other veterinarians would give in similar circumstances
- the veterinarian’s breach of standard of care (negligence) caused injuries to the pet
- as a result of the above the plaintiff (pet parent) suffered damages.
Breach of contract:
In a breach of contract claim the contract at issue is for the provision of veterinary services, specifically that these services will be performed according to a standard of care that is in accordance with the conduct of a diligent and prudent veterinarian in similar circumstances.
The plaintiff also needs to establish that this breach of contract caused the plaintiff’s loss or damage. The ability to prove that the veterinarian should have foreseen the outcome is especially important.
It is a gross misconception that pets are not worth much, if anything, financially. When pet owners sue a veterinarian or make a complaint to the regulatory body, they are mostly driven by emotions and by a sense of justice. They are usually not seeking simple compensation, but are ultimately seeking some form of relief for mental distress or the loss of companionship.
The fundamental principal on which damages are awarded does not only take the financial position of the pet owner in consideration; it also considers anguish and distress suffered by the pet owner.
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 pets are considered property under the law. In the United States courts have awarded damages for mental distress or for loss of companionship against veterinarians.
Courts are starting to recognize that pets are not just things, but that they occupy a special place somewhere between a person and a piece of personal property. This important principle will change the way veterinary malpractice claims will be 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 pets 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 most provinces, 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 stricter 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.
It seems that veterinary malpractice suits should be brought in Small Claims Court , because the damage awards will likely not exceed $ 25,000. However if a pet owners sues for mental distress and loss of companionship Small Claims Court does not provide the necessary tools to advance such issues.
Issues that arise:
One of the issues that always arise is that once a lawsuit is filed all documents filed are open to the public. This can be very intimidating and potentially embarrassing for both parties if privacy is a concern.
Obtaining credible expert reports is key to both prosecution and defence of a veterinary malpractice claim.
It is potentially very difficult for the pet owner to obtain a veterinary expert, because they do not want to testify against a colleague. It is important to obtain such a report to show how another veterinary would have treated the pet and what the appropriate standards of care are.
Contributory negligence is a defence for a veterinarian. As the facts develop throughout the case, it sometimes becomes evident that the pet owner 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 pet owner and the veterinarian.
Another common issue is that of informed consent. Pet Owners can claim that the veterinarian did not fully and properly inform them 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 pet owner’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?
The cost for a malpractice suit are high and it is quite uncertain if it will be successful and what the damage awards are. You should ask yourself what the desired outcome is. Do you want financial compensation or are you trying to get justice in memory and honour of your pet? Even if a claim is successful there are no guarantees that you will get financial compensation or even an admission of guilt on the part of the veterinarian.
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.
In Ontario a complaint can be filed with the College of Veterinary Medicine: