| Although some courts have found that the concept of medical malpractice does not apply to veterinarians, many have concluded that the concepts of professional negligence apply based on the conduct of a veterinarian in the performance of his/her professional services. The practice of veterinary medicine, like the practices of medicine and law, require specialized education, knowledge, and skills, and veterinarians have a duty to use their skills in the same manner that would be ordinarily expected of other careful, skillful veterinarians either in the locality or in the more extended community.
In order to make a successful claim of medical malpractice against a veterinarian, an owner has to prove that the veterinarian had a duty to conform to a certain standard of care, that he breached that duty, that an animal was injured, and that the injury was reasonably connected to the negligent conduct of the veterinarian. The owner's own negligence will not bar recovery against a negligent veterinarian unless the veterinarian shows that the owner's negligence was the direct cause of the animal's injury.
Merely showing an unfavorable result from a veterinarian's treatment of an animal is not enough to prove that he was negligent. An honest error of judgment is not a breach of a veterinarian's duty of care, nor is the choice of one method of treatment resulting in injury when that alternative is a medically acceptable.
Usually, an owner will use an expert witness to establish the applicable standard of care and a veterinarian's breach of that standard. However, an expert may not be essential when the negligence can be determined by the common knowledge ordinarily possessed by the average lay person. In addition, the applicable standard of care can be shown by literature, warning labels on drugs, and the veterinarian's own records. In addition, a state's licensing statutes may impose certain standards on veterinarians practicing within the jurisdiction.
Absent a special contract, a veterinarian does not guaranty a cure. However, veterinarians have been held liable for improper diagnoses, for improper surgical procedures and post-surgical treatment, for the abandonment of an animal after treatment, and for the improper administration of vaccinations and inoculations. In addition, courts have determined that veterinarians breached their duty of care when they used faulty techniques in the administration of medications, including improper quantities and the wrong choice of drugs.
If a veterinarian is found to be negligent, the owner of the injured animal is entitled to an award of damages. An animal is normally considered an item of personal property, and damages can be measured by the fair market value of the animal or the difference between the value of the animal on the day it was treated by the veterinarian and its value had it survived the treatment. If the animal survived, the damages are frequently measured by its value before and after the injury.
An award of damages for injury to a pet may include some element of the sentimental value of the animal. A few courts have even allowed owners to recover for their own emotional anguish where the evidence showed the grounds for and the severity of the emotional upset. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |