- Incorrect treatment
- Lack of informed consent
- Failure of skill in surgical procedure or nonsurgical treatment
- Incorrect kind or amount of medication
- Violation of commonly accepted protocols
- Inadequate supervision ("captain of ship")
- Dereliction of duty (patient abandonment)
- Failure to provide preventative care
- Inadequate record keeping propagating error
- Leaving foreign object in body
While many states have enacted medical malpractice tort reforms, dramatically changing the types of and deadlines for claims that can be made against a health care provider, most apply only to human patients. Thus, depending on where you reside, a veterinary malpractice claim could quickly become subject to many traps for the unwary. Generally, state veterinary malpractice law requires you to prove the following: (1) your companion animal's injury resulted from failure to follow the accepted standard of care; (2) the veterinarian promised that the injury would not occur to your companion animal; (3) you did not give informed consent for the procedure or treatment, and the procedure or treatment caused harm to your companion animal; (4) the injury to your companion animal resulted from resulted from a procedure or treatment to which you did not give any consent. In addition to the above four claims, consider conversion, negligent misrepresentation, fraud, and consumer protection act violations.
ConsentIf a veterinarian performs a procedure without any consent - informed or otherwise - and it causes harm to your companion animal, he or she may be liable. Medical battery (where a surgeon operates on a human patient without any consent) provides an interesting parallel, but because animals are still legally regarded as personal property, a nonconsensual, harmful touching of property is called trespass to chattels or conversion. If you happen to suffer from a disability that aided by a service animal, then a veterinarian could be sued for medical battery if he injures or kills a service animal by performing a procedure not authorized by you. This is because some courts regard the service animal as tantamount to a physical extension of the disabled handler.
The doctrine of informed consent was developed to prevent doctors from strongarming unknowledgeable patients into assenting to treatment. Much like the driver who leaves his car at the automobile mechanic for an expensive and experimental repair of the transmission, the dog's owner-guardian, before spending a sum many times in excess of the purchase price of the animal, and which could conceivably kill the dog, has a right to know all material facts pertaining to his treatment options. Meaningful choice is at the heart of the informed consent doctrine.
Standard of careProving a standard of care violation requires expert testimony (a) defining the standard of care, (b) examining how the veterinarian breached this standard, and (c) explaining how this breach caused your companion animal's injury. For instance, if a veterinarian fails to open the pop-off valve during anesthesia, causing a male dog to die during a neuter surgery, you would need an expert to testify that the standard of care is to keep the valve open, and that the veterinarian's failure to keep it open caused your dog to perish. A claim of professional veterinary negligence does not differ substantially from the mechanics of proving any other claim of professional malpractice. While one can sue a veterinarian for malpractice related to lack of professional skill, one can also state a claim against a veterinarian for shady entrepreneurial practices (i.e., advertising, marketing, prescribing, treating) like charging for unauthorized surgeries or obtaining sham (because uninformed) consent for a costly procedure, or advertising 24-hour care by an "on-site" veterinarian when the veterinarian is, in fact, only "on-call."
FraudDo not forget that veterinarians are people, too. So if a vet maliciously injures a companion animal, or steals him through false pretenses, claims of fraud and malicious injury may apply. In one case, a veterinarian treated and then gave plaintiff's dog to another person after plaintiff authorized euthanasia rather than to pay for treatment. In addition to awarding general damages for mental anguish, the court awarded punitive damages for the veterinarian's course of conduct in giving the dog to another person without plaintiff's consent, calling the veterinarian's conduct a "sufficiently aggravated violation of societal interests to justify the sanction of punitive damages as a preventative measure." The court quipped, "In other words, a veterinarian should not give a client's dog to a third person without the consent of the owner." Id.
This information is provided for general information only and should not be construed as legal advice. Please consult with an experienced animal law attorney in your jurisdiction to evaluate the viability of any claim.