The Law on Veterinary Malpractice

Veterinarians in Canada would be happy to know that there are not yet any self-proclaimed "veterinary malpractice" experts in Canada. But in light of some recent cases in the U.S., law suits of this type may not be too far away.

A recent story in USA Today reported on a record damage award of $39,000 in a veterinary malpractice case in California. The plaintiff, Marc Bluestone, sued his vet after a misdiagnosis resulted in the death of his dog Shane. The jury awarded Bluestone $30,000 for the dog's "unique value" to his owner, and $9,000 for vet bills.

Other cases reported in the same story include $15,000 awarded by a Kentucky jury for the loss of a German Shepherd who bled to death after surgery, and almost $28,000 awarded by a judge in California to a woman whose Rottweiler had to have teeth capped after a bungled dental surgery.

Doug Jack, who does most of his work for veterinarians, including malpractice defense, says that although Canadian courts do not award these kinds of damages yet, high vet malpractice awards may come to Canada come soon.

"Ten years ago, we knew that this was evolving" says Jack, referring to the evolution of damage awards for the loss of pets, "but we said probably not anything that is going to happen in the next generation. And sure enough, within about 5 years, they started legislative change [in the U.S.], and then there were more and more cases happening, decisions were going this way and that way on it. It is evolving much faster than I would have anticipated."

Since pets are treated as chattel under Canadian law, damage awards are still capped at the economic worth of the animal. In other words, the courts do not yet recognize the "human-animal bond" as a ground to award damages for the pain and suffering that pet owners experience when they lose their pet. If what is happening south of the border is any indication, however, awards in this area could go up substantially if this "human animal bond" is recognized by Canadian courts.

In the U.S., the debate about whether pet owners should be granted damages based on the human animal bond has been around for awhile. In the leading case of Laporte v. Associated Independents, Inc. 163 So. 2d 267 (Fla. 1964), a dog owner filed suit against a trash collection corporation for maliciously killing her dog after an employee for the company threw a garbage can at the miniature dachshund while it was tethered outside the dog owner's house. The trial judge had instructed the jury that the dog owner could recover for her mental distress, and this direction was reinstated by the Florida Supreme Court after the appellate court reversed the damages award because of this jury charge. The Supreme Court famously said that "the affection of a master for his dog is a very real thing."

Since Laporte, American courts have disagreed about whether damages should be awarded to pet owners for emotional distress. What this has led to, as Douglas Jack points out, is legislative change throughout the U.S. In 2000, Tennessee passed the first statute specifying that damages up to $4000 can be awarded to an owner for the emotional distress due to the loss of a pet through the 'negligent act of another." Similar bills are currently pending in Hawaii, Maryland, New Jersey, New York and Rhode Island. A bill in Michigan that was introduced in June, 2002 and subsequently failed, would have awarded $250,000 in non-economic damages to aggrieved pet owners.

In Canada, however, litigious pet owners who feel their vet has been negligent seem to be limited by the economic value of their pet. But litigious pet owners seem to be increasing in numbers. These pet owners will often also file complaints with the College of Veterinarians when they sue their vet. Alec Martin, the Deputy Registrar at the College of Veterinarians of Ontario, says that the number of complaints filed at the College has increased substantially over the last 7 years, from 92 in 1998, up to 170 in 2004. Martin says he often sees the pet owners filing complaints in to the college in conjunction with small claims actions. "Sometimes the complaint that is filed takes the form of nothing more than a covering letter and a statement of claim" he says.

For Martin, recognizing the human animal bond may be an improvement in the law, even though it may increase damage awards against vets. "The trouble is that animals in the law are still treated as property, as chattels, and yet they are now members of the family when it comes to the attitudes of the public." Martin points out that some of the absurdities of treating animals as chattel, such as when vets are required to rely on the Repair and Storage Liens Act to deal with problems of unpaid bills.

So, will recognizing this bond mean that vets are delivering better care to animals, or simply paying higher insurance fees to reward litigious pet owners? Michael O'Sullivan, the Executive Director of the Humane Society, thinks increased damage awards would be a positive development. "It is good that the law is there to resolve matters that can't be resolved in other ways" he says. "Canadians care very deeply about animals."

O'Sullivan also thinks that the college of veterinarians and other disciplinary bodies need to be accountable to the Canadian public. "There would be fewer suits if there was a public component to peer review systems for veterinarians, and there would be more public confidence."

For Bernard LeBlanc, who does prosecutions for the College of Veterinarians, most disagreements emerge from lack of communication between vets and pet owners. "The common themes more specifically are in relation to informed consent; not only in terms of surgical procedures that are performed, but in terms of fees. Standards cases, where there is a suggestion that they fell below a certain standard of practice, [the College] estimates, are less than 10%."

Veterinary colleges may be recognizing these problems as well. The University of Guelph's Ontario Veterinary College hosted the world's first international conference on communication in veterinary medicine in June of 2004.

Doug Jack, however, thinks that big veterinary law suits will come to Canada soon. "As more and more scientific research is provided to give credence to the human animal bond, plaintiffs' counsel are going to latch onto that. As opposed to just being a small claims court claim for $700 for a purebred Golden Retriever, it's a $70,000 claim for loss of companionship of the animal."

Tim Wilbur is the Focus Editor of The Lawyers Weekly.