Fighting for Accountability
You trust your veterinarian to diagnose and treat your pets. But what if your veterinarian makes a mistake and that mistake hurts, or even kills, your beloved family member? In recent years, the field of veterinary medicine has become increasingly difficult to regulate. In the meantime, pet owners are valuing their pets as members of their family and are spending more than ever before on specialized care for their pets as a result. Today, costs for many veterinary procedures rival those of medical procedures for humans. Sadly, the legal system has failed to keep pace with the way society currently values pets.
What is Veterinary Malpractice?
“Malpractice” is the term used commonly to describe a serious error by a medical practitioner. Under Ohio law, however, the proper and more accurate legal term when it comes to acts committed by veterinarians is “veterinary negligence.”
Either way, the issue is whether the medical professional failed to meet the standard of care ordinarily expected from others in his or her profession.
The Problem with Recovery in Veterinary Malpractice Cases
The prevailing case law in Ohio holds generally that animals are items of personal property (like cars, toaster ovens, or lawn chairs) and damages for any loss of that property is limited to the fair market value of similar item of property (breed, physical condition, age, etc.). Animal welfare attorneys are still trying to get courts to recognize the unique value a pet has as an irreplaceable individual personality and member of one’s family.
This unfortunately means that while “ordinary” household pets have a high personal value, they often do not have a high fair market value and may not even have a market value at all. For example, a twelve-year-old, spayed, mixed-breed dog with cancer that you have had for many years has an increasingly high personal value as a member of your family. In fact, that dog’s “value” to you has likely increased over time as your personal relationship has grown stronger. On the fair market, however, as your dog has aged and perhaps become sick, his value has decreased. The cost to “replace” such a dog in the fair market is probably under $100. Thus, an aggrieved pet owner would likely only be able to recover that small market amount to “replace” the damaged property. In some cases, it is possible that an aggrieved pet owner could recover veterinary fees. There also may be significant market value for animals that are used for a for-profit task, such as show or breeding, or have particularized training, such as service dogs.
The law does not generally recognize emotional distress for the negligent loss of or harm to pets, which means there is no recovery for “pain and suffering” in these cases. Veterinary malpractice cases, while similar in theory to human malpractice cases, are not at all similar in terms of possible damages.
There is some support for the concept that damages for loss of an animal should not be strictly related to market value, and that any award should recognize the “value to the owner,” but this principle has not been widely applied or accepted in Ohio.
First, pet owners should take all steps to immediately preserve evidence in their potential case, including by obtaining all veterinary records and a necropsy (animal autopsy) or examination of a still-living pet by a third party veterinarian as soon as possible. Taking photographs or other documentation of the pet’s condition may also be important.
As a preliminary matter, an aggrieved pet owner can report the matter to the Ohio Veterinary Medical Licensing Board (OVMLB). The OVMLB is required to undertake a complete review of the complaint along with the veterinary records. If the OVMLB finds a violation of the veterinary licensing board standards, sanctions can be imposed, including suspension or termination of a veterinarian’s license. In our experience, serious sanctions are rarely imposed. In any event, the OVMLB complaint process does not result in providing the pet owner with any sort of compensation. A complaint can be filed here: https://elicense.ohio.gov/oh_filecomplaint
Beyond the OVMLB complaint process, pursuing compensation through litigation in these cases is complicated. A particularly difficult hurdle in veterinary malpractice cases is that a third party veterinarian must first render an opinion that the offending veterinarian acted negligently in their treatment of the pet. It is difficult to find veterinarians who will testify against fellow veterinarians. While a local veterinarian’s opinion is best, Joey’s Legacy (https://joeyslegacy.org/contact-us) provides contacts for veterinarians who will review records and issue an opinion on whether veterinary negligence occurred for a reasonable fee.
If a veterinarian ultimately renders a favorable opinion and you decide to proceed with litigation, the bottom line is that most clients who pursue veterinary malpractice cases must be prepared to spend more money in attorney and expert witness fees than they will probably recover in a lawsuit because of the limits on recovery in these cases. Due to those uncertain and often nominal damages, unlike human medical malpractice cases, veterinary malpractice cases are not normally handled on a contingency basis, meaning clients must pay their attorneys and experts on an hourly basis.
A more cost-effective option in some cases can be small claims court, which does not require personal litigants to have an attorney. That said, a pet owner suing a veterinarian in small claims court is still required to prove certain facts, perhaps most importantly that the veterinarian deviated from the applicable standard of care, which requires expert testimony. Pet owners who appear on their own behalf are held to the same standards as attorneys and are required to be acquainted with the Rules of Evidence and how hearings are conducted. Most veterinarians will be represented by insurance attorneys or private counsel, even in small claims court.
Pet owners ultimately need to weigh the cost of an attorney with the potential cost of litigation to determine whether hiring an attorney to pursue a veterinary malpractice claim makes sense.
Because of the limitations on damages, most victims who proceed with veterinary malpractice cases do so out of a strong belief in principle. They hope at a minimum to have the opportunity to make the veterinarian confront his/her errors in a manner that will hopefully prevent them from making the same mistakes again, to create a public record, to effect change in the law, or to seek justice for their pet.
How Can We Help?
The statute of limitations in these cases is generally two years from the date of the incident and if a lawsuit is not filed within that time period, claims will be waived. Pet owners should consult with an attorney well before that time period runs if they are prepared to pursue legal action.
Our attorneys are dedicated to helping pet owners who wish to pursue these matters. We can help you find a path to pursue justice for your pet that fits within your budget, whether it be assistance with filing an OVMLB complaint, engaging in settlement negotiations, or litigation.