One of the hardest parts about being a pet guardian is having to take your animal companion to the veterinarian when they become sick or injured. My dog instantly knew when he was going to the veterinary clinic after we turned right onto the major road near our house instead of left. He would restlessly pace around the back seat and occasionally whimper until the car stopped. It broke my heart every time I lifted him onto the examination table, waiting for the veterinarian to care for his needs that day. The only thing that made me feel even slightly better was my trust in the veterinarian and the knowledge that they always handled my dog with exceptional care; I knew that he would return better than when he first arrived. Unfortunately, not all visits to the veterinarian turn out the way we hope they do.
Veterinary malpractice is a “catch-all” term that refers to an accident or incident affecting your animal companion while they are under a veterinarian’s care. While veterinary malpractice is the issue facing you and your companion animal, your cause of action is usually brought as a negligence or breach of contract claim. For this post, I will briefly discuss veterinary negligence from the perspective of what you need to know before you can bring a cause of action in negligence along with a few comments on the inclusion of mental distress which could increase the number of claims we see in the future.
In order for a plaintiff to succeed in a veterinary negligence dispute they must prove two elements: (1) that the veterinarian’s conduct fell below what a “reasonable veterinarian” would have done in comparable circumstances, and (2) that the failure to meet the standard of a reasonable veterinarian in comparable circumstances was a contributing cause to the animal’s injury.
Whether a veterinarian has fulfilled their obligations to your animal companion is not always easy to know. For example, in a case from Nova Scotia, the court held that a veterinarian who advised a pet guardian about potential tests that could be ordered without strongly recommending they undertake them did not breach the standard of care: McNeil v. Weste. The court supported this conclusion by reasoning that tests are often expensive and not always necessary in the circumstances.
As another example, in an Ontario case the court held that where time is a major factor in attempting to save an animal companion’s life, a veterinarian may not be held liable for failing to perform a dangerous procedure before appropriate testing to determine the cause of the animal’s illness has been completed: Willowdale Animal Hospital v. Standefer. Crucial to this case was the fact that the veterinarian had been in contact with experts at the Ontario Veterinary College during the procedure and the College provided evidence supporting the veterinarian’s decision-making.
As a final example, in Murray v. Mouris, another Ontario case, a veterinarian was found to have breached the standard of care by mistakenly diagnosing a cow as being sterile when the cow was in fact five and a half months pregnant. The owner, believing his cow was sterile, slaughtered the animal. An essential element of this case was two expert medical reports which concluded a veterinarian exercising prudence and diligence would have known that the cow was pregnant.
The message from the case law is clear. In order to win your veterinary negligence dispute, it is absolutely essential that you have enough information about your animal companion’s injury or death to determine whether the veterinarian could, or should, have done something differently.
Sadly, in the McNeil case discussed above, the distraught pet guardians took their deceased animal companion home to be buried before an autopsy could determine the cause of death. The court concluded that without knowing how the animal passed away it was impossible to determine whether the veterinarian had acted inappropriately. As heart-breaking as these moments can be, it is absolutely essential that you know exactly what happened to your animal companion before making arrangements for laying them to rest.
An unfortunate aspect of veterinary negligence cases is that the law and the courts have been slow in recognizing the devastation that losing an animal companion can have on a pet guardian’s family. Very few cases of veterinary negligence actually go through the trial process and produce a reported decision. Most veterinary negligence cases are settled with the involvement of an experienced mediator before they reach the courts in litigation.
A partial explanation for the limited case law is that historically, companion animals have been almost exclusively viewed as property of their human guardian. As a result, courts were often reluctant to award the plaintiff anything more than the replacement cost of the animal or modest amounts to reflect lost wages when the animal was used as a source of income. This meant that the cost of bringing a veterinary malpractice dispute to court would be more expensive than the damage award given to the successful plaintiff.
Fortunately, the law of contract has developed to recognize that when you bring your animal companion to the animal hospital, you are contracting for the “peace of mind” that the veterinarian will act reasonably to ensure that your animal receives the best care in the circumstances. If the veterinarian fails to act reasonably, it is foreseeable that you may experience emotional upset or distress. Damages for mental distress can widen the pool of damages and result in awards that are greater than the cost of litigation. In the future, we may see more veterinary negligence cases going to trial because of this development.
Until more veterinary negligence cases are reported, the lack of guidance from the courts means it may still be difficult to predict whether the plaintiff or defendant will be successful at trial. The safer approach for the time being may be to attempt mediation before turning to the courts for help.
Gartner and Associates Animal Law has successfully mediated veterinary negligence disputes in the past and our passion for animal welfare guides the service we provide to our clients. Animal law is all that we do. With our firm, you can be assured that our experience will be focused on meeting your animal companion’s specific needs. If your animal companion has been the unfortunate victim of veterinary malpractice, our firm is dedicated to serving you and your animal companion’s best interest.