Negligence
Under Texas law a veterinarian is “negligent” and legally liable for malpractice if he or she “breaches the standard of care of an ordinary, prudent veterinarian.” A bad outcome does not necessarily mean the vet committed malpractice. Sometimes, animals die or have a bad outcome even though the vet did not do anything wrong. In order to prevail in a malpractice lawsuit, the law requires you to have a veterinarian who is willing to testify that, in his or her opinion:
1) The vet breached the standard of care, and
2) This breach caused your animal’s injury, death, or a need for additional treatment.
Without a veterinary expert witness, most malpractice lawsuits will get tossed out of court. As you might guess, it can be very difficult to find a veterinarian who is willing to testify against another veterinarian. Also, a veterinarian who agrees to be an expert witness is usually going to charge for his or her time. This can become quite expensive, especially if a lawsuit is filed and the expert testifies in a deposition or at trial. Here is an organization that has a list of veterinarians who will review cases for potential malpractice: Joey’s Legacy.
Only economic losses may be recovered
In 1891 the Texas Supreme Court decided that pets are “property.” Unfortunately, a beloved companion animal is no different under Texas law than a chair, bicycle, or any other inanimate object. This means that if your companion animal dies as a result of veterinary malpractice, the most you can sue for is your economic or monetary loss. This would include the actual market value of your animal (the amount you could have sold your animal for) plus any money you spent on veterinary treatment that was required because of the malpractice. You are not entitled to recover anything for mental anguish or the sentimental value of your animal And, even if you win your malpractice case, the veterinarian will not have to reimburse you for the attorney’s fees you spent. Some states have begun allowing animal owners to recover damages for mental anguish for the loss of a companion animal or the animal’s sentimental value. In 2013 I took a case to the supreme court and tried to convince them to change the law, but was unsuccessful. See http://abcnews.go.com/US/texas-supreme-court-rule-dogs- sentimental/story?id=18186388). If a veterinarian’s negligence did not cause your animal’s death, but caused your animal to need additional veterinary treatment, then you may be able to recover the amount you paid for the subsequent treatment.
The law needs to be changed to reflect the actual value society places on our four-legged family members. The death of a companion animal can be as emotionally devastating as the loss of a close relative. It is morally wrong to treat them the same as inanimate objects. If you agree, join the Texas Humane Legislation Network (see last paragraph below.)
Hiring a lawyer to file a malpractice claim
It will be extremely difficult—maybe impossible—for you to find a lawyer who will handle your case on a contingent fee or percentage basis. The reason for this is the legal limitation on damages that may be recovered, as I described above. When the vet is sued, his malpractice insurance company is going to hire a lawyer to defend him. Your lawsuit can easily become as complicated and time-consuming for your lawyer as a human medical malpractice case and could require your lawyer to possibly spend hundreds of hours working on the case. Since a lawyer’s contingent fee is going to be a percentage (usually 1/3 or 40%) of your economic loss the lawyer could easily wind up working for less than minimum wage. Typically, lawyers will only take veterinary malpractice cases on a contingent fee basis if the economic loss was substantial. Unless your economic loss was tens of thousands of dollars, most lawyers will only take these cases on an hourly-fee basis with an initial retainer to cover the first several hours.
Cost to pursue a malpractice claim
The biggest problem in most small-animal veterinary malpractice cases is that they are usually not economical to pursue. The attorney’s fees, expert witness fees, and other expenses that are incurred in litigation, usually far exceed the amount that the animal owner could win in a lawsuit. Again, this is because the animal owner is only entitled to sue for his or her “economic loss.” For example, if an animal had a “market value” of $500, then it is not going to be financially worthwhile to spend thousands of dollars on a lawsuit to get a judgment against the vet for $500. Again, if you win your lawsuit, the veterinarian you sued does not even have to reimburse you for your attorney’s and expert witness fees (unless the animal was a horse or livestock.)
Malpractice lawsuits involving companion animals are rare
Because Texas law treats companion animals the same as inanimate objects and only economic losses may be recovered, very few veterinary malpractice lawsuits are ever filed against small-animal veterinarians in Texas. Consequently, they have very little legal incentive to be careful and not commit malpractice. They know that even if they negligently kill or maim a person’s animal they will most likely never be sued or, even if they get sued and lose, they won’t have to pay much money.
Statute of limitations
There is a two-year statute of limitations in Texas for veterinary malpractice. This means that you have two years from the date the vet was negligent to file a lawsuit. If a lawsuit is not filed within that two-year period, your claim will be barred by law.
You have a right to the vet records
Under Texas law, a veterinarian is required to furnish you with a copy of your animal’s records, including x-rays, within 15 business days after you request them. The vet may charge a reasonable fee for copying and postage. The records may not be withheld from you based on your account being past due. A veterinarian who does not comply with this rule may be disciplined by the Texas Board of Veterinary Medical Examiners.
Filing a complaint with the Vet Board
Regardless of whether or not you pursue a legal claim you may want to consider filing a complaint with the Texas Board of Veterinary Medical Examiners if you think the vet committed malpractice or did something unethical. You may also file a complaint if the vet does not furnish you with records as discussed above. This link tells you how to file a complaint: https://www.veterinary.texas.gov/Complaints.php
Join the Texas Humane Legislation Network
Everyone in Texas who has a companion animal and cares about the laws that protect animals should join the Texas Humane Legislation Network (www.thln.org) This is a non- profit, grassroots organization that fights for animals in the Texas legislature. Most of the animal protections laws in Texas were passed because of THLN’s efforts.