Full Title Name:  Detailed Discussion of Veterinarian Malpractice

I. Introduction

Given the number of animal veterinary interactions that occur on a daily basis, and given the reality that not all these interactions have a successful outcome, the possibility of lawsuits is always present. One factor that has kept the number of lawsuits at a minimum level in the past is the low amount of damages awarded for the injury to animals.  The financial consequences of these lawsuits is becoming more expensive for veterinarians and their insurance companies. Whereas in the 1970's the financial cost of malpractice tended to be no more that the market value of the animal, in the mid-1990's lawsuits often settled at the $5,000- $10,000 level. (The 1995 California case of Rappaport v. McElroy (LA Municipal Court) reached an out-of-court settlement of $15,000 with the insurance company for the death of a cat after a veterinarian treated the cats fleas with a toxic product.) It is expected that as the value of animals increases within the context of the legal system, the number of lawsuits filed will tend upward.

Malpractice as a standard of legal liability applies only to professionals. Veterinarians are now accepted as one of those categories subject to this standard of care. Who is a veterinarian is a question easily answered as a state license is required. What if a farmer down the road, with 30 years experience in raising hogs or horses gives advice that turns out to be wrong? As he is not a veterinarian, the farmer can not be held to a standard of malpractice. However, anyone, including the farmer next door, is subject to the constraints of a tort law concept such as negligence.

Categories that are in-between might be animal psychiatrists or animal behaviorist. To the extent that they rely upon formal training, hold themselves out as having expertise not possessed by the general public and charge a fee for their service, animal psychiatrists approach the status of professionals. However, they are not licensed, as such, by the various states. A court will have to decide whether to impose the obligations and limitations of the standards of legal malpractice upon them. For purposes of this article, it is presumed that the actor is a licensed veterinarian.

II. Summary of Potential Legal Actions

Veterinarians by the nature of their occupation deal with animals on a daily basis and in a variety of contexts. The core of their activities relate to the providing of professional services, which are usually performed to the satisfaction of both the animal and his or her owner. But, invariably some of the interactions do not have the desired outcome. As the following list suggest, the veterinarians who have been defendants in lawsuits find themselves confronted with a wide variety of legal claims:

1. Malpractice. Discussed in full below.
2. Res ipsa loquitur. This is an important alternative cause of action against a veterinarian, as an expert witness is not needed. Some mistakes are so obvious that the average person (the jury) can make an informed judgment without an expert witness. (See G1 , infra.)
3. Administrative Action for Malpractice. A person may file an action against a veterinarian with the state administrative licensing board that oversees veterinarians. (See I , infra.)
4. Negligence. As discussion below, if the actions in question are not within the realm of malpractice, then there may be legal liability based on common negligence. For example, if a veterinarian was overseeing the loading of a horse into a trailer and did not properly secure the horse, the standard of care is that of negligence.
5. Gross negligence. This is the more egregious form of a claim of negligence. ( FN 1 ) If an animal came in for a treatment for fleas, and the veterinarian removed a leg, that would be gross negligence. A claim of gross negligence may support different kinds of damage awards, such as punitive damages or emotional distress for the owner.
6. Intentional and negligent infliction of emotional distress (on the owner). This may arise when the actions (against an animal) are intentional and likely to produce a strong reaction in the owner. ( FN 2 ) This is an action in torts which is explained further in the Pet Damages discussion.
7. Duties of bailee. When a veterinarian acts as a bailee of an animal (for example when he or she boards pets), then legal liability may arise either out of negligent care of the animal or failure to redeliver the animal to the owner. In one case, an insured veterinarian was bailee of an elephant, who died from poison while in his custody. While his negligence in allowing the animal near poison would normally give rise to liability, the bailor and bailee had signed a release which held the bailee "harmless from any liability in the event of the death of the elephant 'Sparkle.'" ( FN 3 ) A claim based upon a bailment does not require an expert witness and may have the effect of placing the burden of proof upon the veterinarian to explain what happened to the animal.
8. Violation of a contract obligation. This may be a useful approach if there is a written contract. However, oral agreements may also constitute a contract. The normal conversation with a veterinarian before rendering services would not constitute an oral contract. A contract claim can not be based on general statements of reassurance, "I'm sure Fluffy will be better after the operation." Rather, it must be a specific promise to do something or obtain a specific result. ( FN 4 ) In a contracts action, the promise in the contract becomes the standard for conduct, not the general standard of veterinarian care appropriate to the community. There may be a difference in the statute of limitations for filing a contract action (longer) verse tort or malpractice action. (See H, 1, infra.)
9. Deceptive trade practices. However, professional services are often specifically excluded in the statutes that create the cause of action. ( FN 5 )
10. Taking. This may occur when the actions of an agent of the State result in the death of an animal. Only one case has been found to support such a cause of action. It first requires that the veterinarian be an employee of the State. Secondly, because of some state policy the injury to the animal occurred. ( FN 6 )

III. Malpractice Distinguished

At common law, and even prior to World War II in the United States, legal claims based upon malpractice did not apply to veterinarians ( FN 7 ) (just doctors and lawyers). The 1936 edition of the legal digest, CJS, has 289 pages of information about animal legal issues but the term "veterinarian" and "malpractice" does not occur anywhere in the material. Since that time, there has been an expansion of the application of the concepts of malpractice to include veterinarians. This has been done by judicial rule and by the adoption of new legislation. In understanding the scope of a claim based on malpractice, it must first be distinguished from an action based upon negligence. An action is properly based in malpractice if the acts or omissions at issue involve matters of medical science or require special skills not ordinarily possessed by lay people. ( FN 8 ) When an injury occurs as a result of something that would be considered within the professional knowledge of the individual who holds him or herself out as a veterinarian, the legal cause of action will be classified as one based in malpractice. Some state law provides help in discerning which issues are professional by listing those actions for which an individual must have a state issued veterinarian license.

When a veterinarian is acting in other than his or her professional capacity, the normal negligence standard is used. For example, if a veterinarian performs surgery on a horse, the surgery shall be judged under malpractice standards, ( FN 9 ) but if a veterinarian is arranging for the transportation of a horse by trailer, the reasonable person standard applies, since the activity is not within the bounds of his professional knowledge or skill. ( FN 10 ) Likewise, if a veterinarian provides boarding facilities for healthy animals, then he or she would be judged under the same negligence standard as would any other bailee of an animal. ( FN 11 ) Sometimes humans are injured in the offices of veterinarian. In one case, an injury to a worker in a human society shelter was found not to support an action in malpractice. As a veterinarian has a professional duty only to his or her animal patients, an action for injury to a human will be based upon negligence not malpractice. ( FN 12 ) In another case, the court held that the disposing of an animal's body was not within professional standards and therefore only an action in negligence might be supported by the facts. ( FN 13 )

IV. Malpractice Generally

For a plaintiff (animal owner) to recover damages for injury to an animal, in an action based on malpractice, all the following elements must be proven by the plaintiff ( FN 14 ):

(1) The defendant was under a duty of care toward the animal in question. The veterinarian had accepted the responsibility to treat the animal.

(2) The actions or nonactions of the veterinarian did not conform to the professional standard of conduct ( C & D infra.).

(3) The failure to conform to the professional standard was the proximate cause of the injury or harm at issue ( E infra).

(4) The injury or harm resulted in damages to the plaintiff (not just the animal in question.

Veterinarians are under no legal duty to treat an ill or injured animal. ( FN 15 ) The decision whether or not to provide a service is an individual decision. A decision to not provide treatment is not malpractice. One case suggests, however, that professional ethics may require some level of attention in emergency situations, but this does not give rise to a legal cause of action. ( FN 16 ) Once the decision to treat an animal is made, the veterinarian has a duty to continue to treat or at least inform the owner of his or her decision to stop treatment of the animal in question. ( FN 17 )

V. Determining the Standard of Treatment

A veterinary surgeon impliedly engages and is bound to use, in the performance of his duties in his employment, such reasonable skill, diligence and attention as may be ordinarily expected of persons in that profession....He did not undertake to perform a cure. Barney v. Pinkham, 45 NW 694 (NE 1890).

The recent cases dealing with injury to animals by veterinarians based on malpractice draw upon the parallel problems and concepts developed in the judging of the conduct of other professions (doctors, lawyers, accountants, etc.). If a jurisdiction has few or no cases dealing with veterinary malpractice, the case opinions arising out of more extensive litigation based doctor/human malpractice is an appropriate alternative source of legal principles. ( FN 18 )

While jurisdictions may have some variation in words or phrases, a general statement of the legal standard for veterinary practice is: "the exercise of the care and diligence as is ordinarily exercised by skilled veterinarians." ( FN 19 ) Another Court stated the standard as "the standard of care required of and practiced by the average reasonably prudent, competent veterinarian in the community." ( FN 20 ) The standard does not make the veterinarian an insurer of the recovery of an animal. Moreover, the existence of an injury or a death after treatment does not give rise to a presumption of malpractice. ( FN 21 ) In one case a court used the following precept: "nor does the legal standard set the threshold for liability at a particularly high level. The average or normal practitioner, not the best or most highly skilled, sets the standard." ( FN 22 ) The plaintiff has the burden of proving that the defendant did not satisfy the legal standard. Since a lay person is unqualified to testify as to the proper exercise of judgment and skill, the testimony must be given by an expert, normally another veterinarian. ( FN 23 ) One case noted that not only must the witness qualify generally as an expert on animal care, but for the particular issues before the court as well. ( FN 24 ) In another case, the plaintiff was unable to meet his burden of proof since no experts testified on his behalf. ( FN 25 ) However, see §8.8, which sets out the exception to the requirement for an expert.

An important limitation on the application of the legal standard for veterinary practice is that of geographical setting. Some jurisdictions seek to limit the scope of the standard to comparisons on a local level. Three geographic variations have appeared in veterinary cases. Utah and Louisiana qualify their standard with the phrase "in the community." ( FN 26 ) Iowa has rejected the "in the community" qualification, stating that location is but one factor for the jury to consider. ( FN 27 ) North Carolina and Tennessee ( FN 28 ) have taken a middle ground with the phrase "similarly situated" -- "It envisions a standard of professional competence and care customary in the field of practice among practitioners in similar communities which, in turn, suggests a consideration of such factors as the nature of the treatment involved; the degree of specialization, if any, required; the character of the community concerned; and the comparability of medical facilities available." ( FN 29 ) It is reasonable to expect that whatever rule a jurisdiction adopted for medical malpractice would also apply to veterinarian malpractice. In the case of an individual who holds him or herself out as an expert in a particular area, such as horses, then the standard of care will be statewide if not national. ( FN 30 ) The appropriate standard may be set by state statute. ( FN 31 )

There are two policy considerations that support a general standard of nationwide or at least statewide scope, making the location of the events but one factor to be considered. First, as a practical matter, it is often difficult for the plaintiff to get local veterinarians to testify against other members of the profession whom they may personally know. ( FN 32 ) Yet, if a "within the community" standard is adopted, then only local veterinarians would qualify as expert witnesses. To make it practical for plaintiffs to prove their cases, use of experts outside the community should be allowed. Secondly, a standard without geographic limitations is in the public interest, for it would promote higher levels of competence within the profession, and therefore better care and treatment for animals. The "in the community" limitations aids primarily the small town or rural practitioner, who historically has less access to new ideas and information than the urban practitioners. While there might have been reasons to tolerate this differing standard in the past, it is no longer justifiable to expect any less from a small-town veterinarian than from an urban veterinarian. With increased emphasis by all professions in continuing (post-degree) education, and with recent developments in communication and data-transfer facilities, everyone who seeks the aid of a professional ought to expect a more or less uniform standard within the entire state. One factor that would qualify such an expectation, however, is access to advanced equipment that may be available only in limited areas within a state (such as the teaching centers).

A. Expert Testimony

The first question to be faced is who can qualify as an expert witness to offer an opinion about the facts in question. It is clear that a nonprofessional, no matter how long familiar with the issues, is not an expert. The neighbor is not. ( FN 33 ) Nor is the horse trainer capable of testifying as to bone X-rays and medical records. ( FN 34 ) If the defendant veterinarian is an expert in a field, such as race horses, then the expert witness must also have qualifications as an expert in the same field. If the jurisdiction of the lawsuit has a community-based standard, then the expert must have actual knowledge of the veterinary practice in the community in question.

Once an expert is qualified and the geographic scope of the standard is settled, then the role of the plaintiff's expert witness is to judge the conduct of the defendant veterinarian. The veterinarian likewise can have experts testify as to the issue of whether the conduct in question was within the legal standards. The expert witness must state whether or not, in his or her judgment, the actions of the defendant, as proposed by a lawyer in a hypothetical fact situation, show the exercise of the care and diligence as ordinarily exercised by skilled veterinarians. ( FN 35 ) Statements by the plaintiff's expert that the treatment was not what he would have done in like circumstances is not sufficient to support a claim of malpractice. ( FN 36 ) In one case, suggesting inadequate trial preparation by the attorney, the plaintiff's expert agreed with the treatment given by the defendant veterinarian. ( FN 37 )

In one case, the defendant performed a castration upon a quarter horse. Significant swelling developed, which the defendant preferred to treat by exercising the horse. Within a week the horse died. The plaintiff's expert witness testified that the defendant's treatment was contrary to accepted medical practice, that since the swelling had not been reduced in 24 hours, corticosteroids and antibiotics should have been administered. ( FN 38 )

VI. Scope of Professional Responsibility

The extent of a veterinarian's professional responsibility is an important issue. It is only when the veterinarian is carrying out or ought to carry out his or her professional responsibilities that the professional standard of care applies. ( FN 39 ) The professional duty of a veterinarian usually begins with obtaining a history of the animal, followed by a physical examination. The veterinarian is required to use professional leaning, skill, and care, beginning with the initial contact with the animal, through the diagnosis of the problem, the decision and execution of treatment and the necessary follow-up care. Having the history, it is expected that the veterinarian will act accordingly. This was exemplified in a case where the claim was that the veterinarian knew that a dog had allergic reactions to vaccines, but forgot and gave one that killed the dog. ( FN 40 )

Throughout this process, there is a duty to keep the owner informed and obtain the necessary consent for the suggested treatment. In obtaining permission for treatment, there should be disclosure of the risk of the treatment or drugs. However, in one case where a horse died within fifteen minutes of being injected with a drug, the court held that there was no duty to disclose or warn when the odds of a lethal out come were 1 in 25,000. ( FN 41 )

In Brockett v. Abbe , ( FN 42 ), a veterinarian was requested to determine whether or not a cow was pregnant. He used a "punch" test rather than a rectal test, which was recognized as the only reliable means of determining pregnancy. As a result, he mistakenly told the owner that the cow was not pregnant, and the owner sold the cow for $170, rather than the $550 price obtainable for a cow with calf. The issue was not whether the method of exam was done properly, but whether the appropriate test was used. In another case, the court noted the difficulty in diagnosing distemper in dogs, and with the plaintiff's expert admitting that the defendant showed the appropriate level of skill, there was no malpractice even though distemper was not diagnosed. ( FN 43 )

Once the veterinarian has made the diagnosis, then the issue of appropriate treatment must be met. If the treatment or service is medication or inoculation, he or she is under a duty to prescribe an appropriate medication and dosage. In Ruden v. Hansen , ( FN 44 ) the farmer's sows needed to be vaccinated against cholera to allow their sale. Although the defendant knew that they were pregnant, and the directions on the medicine container warned against use on pregnant sows, he gave them a modified live cholera vaccine. As a result, the 67 gilts had only 80 piglets survive until weaning time (over 500 would be expected under normal conditions). The defendant was found guilty of malpractice.

In an Oklahoma case, the nature of the treatment was proper, but the solution was improperly mixed. ( FN 45 ) Plaintiff brought in four dogs with skin problems to defendant. Shortly after they were dipped in a mixture of lye, sulphur, and P & G soap they all died. The plaintiff's expert testified the lye was too strong, that he routinely used only one-sixth the amount the defendant used. The jury's verdict against defendant was upheld. Finally, in a South Dakota case, the malpractice at issue was neither the medicine nor the mixing of the medicine but the administering of the drug. ( FN 46 ) Plaintiff's experts testified that when sheep are treated with the liquid in question and it is improperly administered, fluid passes into the lungs and causes strangulation and almost certain death.

In two situations, the standard will not be limited by the above requirements. If the veterinarian makes explicit promises about what he or she will do, then he or she may be held liable for not fulfilling the promises, even though his or her actions would not constitute malpractice. Obviously, most veterinarians do not guarantee the cure of animals they treat, and the plaintiff would have the burden of showing such a promise or guarantee was made. A second deviation from the norm is when the veterinarian holds him or herself out as a specialist in a particular area. The public could rightfully expect a higher degree of knowledge and skill from an individual who holds him or herself out as an expert on a particular species of animal. In such a case, the standard for liability would not be veterinarians generally, but those who profess a similar specialty.

VII. Proximate Cause

As with all tort actions, the veterinarian's malpractice must be shown to be the proximate cause of the injury. In the cases discussed in the prior section, the action of the individual clearly resulted in the harm to the animal. Proximate cause differs in that the causation is often less obvious.

In one case, a race horse had been destroyed because it had become bad tempered and uncontrollable. ( FN 47 ) Previously, the defendant veterinarian had performed surgery on the horse's leg and then had made transportation arrangements. The court pointed out that many factors may have led to the horse's mental deterioration, and that the plaintiff had not shown how the actions of the defendant, particularly the surgery, were the proximate cause of the deterioration of the horse. The court defined proximate cause as "the active and efficient cause that sets in motion a train of events which brings about the result without intervention of any force started and working actively from a new or different and independent source." ( FN 48 )

A. The Alternative of Res Ipsa Loquitur

Sometimes the action of the veterinarian is so obviously wrong that an expert is not needed to show malpractice. A court may allow a jury to make a judgment based upon the "common knowledge" of the community, or may apply the concept of "res ipsa loquitur." For example, in one case the veterinarian operated on the wrong horse. ( FN 49 ) In another a veterinarian left a needle in the neck of a horse and left the horse to do another task. The court stated, "moreover, where the very nature of the acts complained of bespeaks improper treatment and malpractice" a prima facie case may be established without the necessity of offering expert evidence to that effect. ( FN 50 ) In both cases, the expert testimony of another veterinarian was not necessary for the jury to find a violation of the law. But, when the issue before the court concerned the application of anesthetics to an animal, the court did not allow res ipsa loquitur to apply, as the understanding of such issues are not in the common knowledge of a layman. ( FN 51 ) While normally a common law concept, it can be authorized by statute. ( FN 52 )

VIII. Defenses to Action of Malpractice

A. Statues of Limitations

One very important procedural point may arise when the basis for a filed lawsuit is classified as malpractice. The law requires that the legal action be initiated within a certain period of time following the events in question. This is called a statute of limitations. If the period of time set out in a state's statutes as a time limitation is passed without the lawsuit being filed, then no legal action may be taken, regardless of the seriousness or obvious wrong doing that might be involved. Any attempt to do so will result in the judge dismissing the suit without hearing the merits of the claim.

The statute of limitations for filing a lawsuit because of the injury or destruction of an animal would normally be governed by the general statute of limitations for injury to personal property. If the legal action is classified as one based upon malpractice, then a different statute of limitations may apply. For example, in Michigan there is a 3-year statute of limitations for injury to property and a 2-year limitation for malpractice actions. ( FN 53 ) Consider the three different time limits under Ohio law. For actions based upon unwritten contracts, R.C. 2305.07 provides:

An action upon a contract not in writing, express or implied, or upon a liability created by statute other than a forfeiture or penalty, shall be brought within six years after the cause thereof accrued.

The limitation for general tort actions is stated in R.C. 2305.10 which provides:

An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.

Finally, R.C. 2305.11(A) provides in pertinent part:

... An action for malpractice other than an action upon a medical, dental, optometric, or chiropractic claim, or an action upon a statute for a penalty or forfeiture shall be commenced within one year after the cause of action accrued ....

Ohio follows the general pattern of giving malpractice suits a shorter statute of limitations for lawsuits to be being filed.

One possible point of confusion is that some statutes refer to "malpractice" actions without defining the term or listing which groups of individuals are within its scope. Faced with this problem, an Ohio court had difficulty in holding that veterinary medicine fell within the undefined term since it was not historically considered a professional occupation subject to malpractice claims. In the case referred to, if the malpractice statute of limitations had been used then the court would have be forced to dismiss the case. Instead, they allow the two-year limitation to apply. ( FN 54 )

B. Good Samaritan

There is one situation where a veterinarian may not be held to the normal standard of practice. This arises in the case of the "Good Samaritan," where a veterinarian renders emergency treatment to a sick or injured animal at the scene of an accident. By statute, in a few states, the veterinarian would not be liable to the owner for damages in the absence of gross negligence. ( FN 55 )

IX. Revocation of License to Practice

Besides legal liability, veterinarians have obligations to their professional organization and to the state, through its licensing board, for maintaining certain levels of professional conduct. If, because of lack of monetary damages or other legal problems, an animal owner is unable to obtain satisfaction through the courts for a grievance against a veterinarian, (or in addition to any civil lawsuit) he or she can pursue the issue with the state licensing board or file a grievance with a professional organization of which the veterinarian is a member.

Most statutes that provide for the professional licensing of veterinarians also provide for the revocation or non-renewal of the license for stated reasons. The statutes fall into two general categories. The first type lists the standard for revocation specifically in the statute:

• fraudulent deception or incompetence in the practice of veterinary medicine (California) ( FN 56 )
• incompetence, gross negligence or other malpractice in the practice of veterinary medicine (Idaho and Mississippi). ( FN 57 )

Other states give the licensing board the authority to pass regulations governing the practice of veterinary medicine. A license can be revoked for violation of these standards of professional conduct (Texas and Virginia). ( FN 58 )

In one New Jersey case, the standard for action against the veterinarian by the Board was "grossly neglectful actions or gross malpractice." This standard would not be broken by simple malpractice. The action would have to be much more serious, on the level of gross negligence, before administrative action could be justified. ( FN 59 ) In an Oregon case, a veterinarian had claimed that he had performed surgery on a dog. After the dog's death an autopsy revealed none had been done. The court felt the Board was justified in permanently revoking the defendant's right to practice. ( FN 60 ) Finally, in a New Mexico case ( FN 61 ), a veterinarian's license was suspended for six months due to the following complaints:

failure to communicate with owners of animals.

• failure to inform animal owners of actual conditions of animals.
• failure to inform owners of deaths of animals under his care.
• failure to administer timely treatment.
• improper record controls on animals.
• failure to maintain clean and sanitary conditions.
• lack of proper control over animals.
• misrepresentation to the public that one of the members of his staff was a doctor of veterinary medicine.

While the filing of complaints with state and professional organizations will give no damages or relief to the animal owner (or the animal), it does act as a check on the general level of practice of a particular veterinarian, an may be the only realistic option that an aggrieved individual may possess.

Footnotes:

1. Massa v. The Department of Registration and Education , 116 IL 2d 376, 507 N.E.2d 814, 107 IL Dec. 661 (Ill. 1987). Review of administrative action for revocation of veterinarian license before state agency. The plaintiff made a claim of gross malpractice in treatment of his pet dog, a German Shepherd. Defendant did the wrong operation on the dog, removing the uterus and ovaries, but did not treat problems in lungs which caused death. A failure to accurately diagnose amounted to gross malpractice. The court discussed that gross negligence does not require the finding of wilful and wanton action which is equal to recklessness, rather it is very great negligence.

2. Gill v. Brown , 695 P.2d 1276 (Idaho 1985). Defendant shot and killed plaintiff's donkey. The court allowed recovery for emotional distress for the tort of intentional infliction of emotional distress. See also, Restatement (Second) Torts § 46 (1948).

3. Elephant, Inc. v. Hartford Accident & Indemnity , 239 So.2d 692, (CA La. 1970). Liability is judged on status of bailee not on malpractice.

4. See generally , Nikolic v. Seidenberg , 610 N.E.2d 177 (Ill. 1993)

5. Downing v. Gully , 915 S.W.2d 181 (Texas 1996), 1996 Tex App LEXIS 317 (1996). Plaintiff's dog died while under anesthetic for a neutering operation. Plaintiff presented no evidence as to why the dog died. The court held that the DTPA, Deceptive Trade Practices Act, claim was appropriately dismissed since malpractice was specifically excluded from the operation of the statute. Tex. Bus. Code Ann. Sec. 17.41 (1987).

6. Massa v. The Department of Registration and Education , supra note 1.

7. Southall v. Gabel , 277 N.E.2d 230 (Ohio 1971), rev'd , 293 N.E.2d 891 (Ohio 1972). "Until the Supreme Court speaks veterinarians are not subject to malpractice." At p. 232.

8. Joseph H. King, The Standard of Care for Veterinarians in Medical Malpractice Claims, 58 TENN. L. REV. 1 (1990).

9. Price v. Brown , 680 A.2d 1149 (Pa. 1996), 1996 Pa LEXIS 1516. Plaintiff brought her dog to defendant for surgical treatment to correct a prolapsed urethra. Dr. Brown performed the surgery on August 30, 1991. The next evening, Price visited the dog at the veterinary hospital. She inquired into the dog's condition after observing that the dog was panting strenuously and appeared groggy. She requested that the dog be monitored on a 24-hour basis and was assured that would be done by an unidentified agent of Dr. Brown's. Price alleged that the dog was left unattended after midnight that evening. During the morning of September 1, 1991, the dog died. "The issue presented in this appeal is whether a complaint based upon an alleged breach of a bailment agreement states a cause of action for injury or death suffered by an animal that has been entrusted to a veterinarian for surgical and professional treatment. We hold that allegations of breach of a bailment agreement are insufficient to state a cause of action against a veterinarian who has performed surgery on an animal when the animal suffers an injury as a result or does not survive the surgery." Rather, malpractice is the appropriate cause of action. Two judges dissent, believing that bailment was an appropriate cause of action.

10. Southall v. Gabel , 293 N.E.2d 891 (Ohio 1972); See also , Safford Animal Hospital v. Blain , 119 Ariz 296, 580 P.2d 757 (1978) (liability of veterinarian not based on malpractice but on bailment principles).

11. Brousseau v. Rosenthal , 110 Misc.2d 1054, 443 N.Y.S.2d 285 (N.Y. 1980). Elephant, Inc. v. Hartford Accident & Indemnity Co.,  239 So.2d 692 (La. 1970).

12. Rehn v. Fischley, 1995 Minn App LEXIS 1539 (1995). In another case, a women sued for injury to her by her own cat on the basis the veterinarian did not properly restrain the cat while on his examination table. Branks v. Kern , 348 S.E.2d 815 (N.C. 1986); rev'd, 359 S.E.2d 780 (N.C. 1987). One insurance company reported during the 1990's that injuries to humans represented 18% of the claims against veterinarians.

13. Levine v. Knowles , 197 So.2d 329 (Fl. 1967).

14. Downing v. Gully , 915 S.W.2d 181 (Texas 1996), 1996 Tex App LEXIS 317 (1996). Ladnier v. Norwood, 781 F.2d 490 (5th Cir 1986, LA).

15. Orland Soave and Lester M. Crawford, VETERINARY MEDICINE AND THE LAW (Baltimore: Williams & Wilking, 1981) p. 104.

16. In re Kerlin , 376 A.2d 939 (N.J. 1977).

17. 38 ALR2d 503, Veterinarian's Liability for Malpractice. § 10, 1954; Strobel, Malpractice by Veterinarians, 15 CLEV-MAR L. REV. 276, 283 (1966).

18. Downing v. Gully , 915 S.W.2d 181 (Texas 1996), 1996 Tex App LEXIS 317 (1996): "Because there is currently no case law in Texas establishing how veterinary negligence cases are to be analyzed, we will, as other jurisdictions have done, adopt the standard applied to physicians and surgeons in medical malpractice cases. Storozuk v. W.A. Butler Co., 3 Ohio Misc. 60, 61, 203 N.E.2d 511, 512 (1964); Ladnier v. Norwood, 781 F.2d 490, 492 (5th Cir. 1986); see Cheryl M. Bailey, Annotation, Veterinarian's Liability for Malpractice, 71 A.L.R. 4th 811, 821-22 (1989) ("Several courts have held that the body of law developed in medical malpractice actions also applies to veterinary malpractice actions. . . .")."

19. Posnien v. Rogers , 533 P.2d 120 (Utah 1975); Ruden v. Hansen , 206 N.W.2d 713 (Ia. 1973); Barney v. Pinkham ,  45 N.W. 694 (Neb. 1890); Folsom v. Barnett , 306 S.W.2d 832 (Ky. 1957); Brockett v. Abbe , 206 A.2d 447 (Conn. 1964).

20. Dyess v. Caraway , 190 So.2d 666 (La. 1966).

21. Brockett ,   supra note 19.

22. Turner v. Benhart , 527 So.2d 717 (Al. 1988), 1988 Ala LEXIS 242 (AL 1988). This case was an action for the death of a racing horse. Defendant was giving overheated horse bicarbonate of soda solution orally when the horse died. Plaintiff's two expert witnesses stated that they would not have done what the defendant did and that it was not commonly used by veterinarians, but did not testify that the actions fell below the appropriate standard of care.

23. Zimmerman v. Robertson , 259 Mont. 105, 854 P.2d 338 (Mont. 1993). In Durocher v. Rochester Equine Clinic , 137 N.H. 532, 629 A.2d 827 (N.H. 1993) the court held that horse trainer is not an expert for purposes of interpreting x-rays and medical records.

24. Ruden , supra note 19.

25. Posnien , supra note 19; Brockett v. Abbe , 206 A.2d 447 (Conn. 1964), the court rejected the doctrine of res ipsa loquitur and required expert witnesses testify.

26. Posnien , supra note 19; Dyess v. Caraway , 190 So.2d 666 (La. 1966).

27. Ruden , supra note 19.

28. Tenn. Code Ann. § 29-26-115(a) (1996).

29. Williams v. Reynolds, 263 S.E.2d 853 (N.C. 1980). N.C. Gen. Stat. § 90-21.12 (1995).

30. Carter v. Louisiana State University , 520 So.2d 383 (La. 1988), 1988 La LEXIS 635.

31. NC Gen. Stat. § 90-21.12 (1988) and Tenn. Code Ann. §29-26-115 (1980).

32. Mark Lindensmith, Veterinarian Malpractice, TRIAL Jan. 1982, at 49.

33. Ruden , supra note 19.

34. Durocher , supra note 23.

35. Erickson v. Webber, 237 N.W. 558 (S.D. 1931). The hypothetical question must represent a fair statement of the testimony in the trial up to that point.

36. Turner v. Benhart , 527 So.2d 717 (Al. 1988), 1988 Ala LEXIS 242.

37. Posnien v. Rogers , 533 P.2d 120 (Utah 1975).

38. Williams, supra note 29.

39. See Veterinarian Malpractice supra note 8. See generally, 21 WAKE FOREST L. REV. 537 (1986).

40. Zeid v. Pearce , 953 S.W.2d 368 (Texas 1997), 1997 Tex App LEXIS 4968. The lawsuit was a veterinary malpractice claim for giving a shot to a dog that was known to be allergic, which resulted in the dog's death. Plaintiffs case was dismissed because the only damages they sought were pain and suffering, mental anguish, and loss of earnings.

41. Ladnier, supra note 14.

42. Brockett , supra note 19. The court overturned the judgment for the plaintiff because of the lack of expert witnesses to testify as to the breach of professional standard - mere mistake in diagnosis is not a basis for legal action.

43. Dyess v. Caraway , 190 So.2d 666 (La. 1966).

44. Ruden , supra note 19.

45. Kerbow v. Bell , 259 P.2d 317 (Okla. 1953).

46. Erickson , supra note 35.

47. Southhall , supra note 7.

48. See 38 ALR2d 503 at 508 for further examples. See also , Erickson , supra note 35.

49. Durocher v. Rochester Equine Clinic , 137 N.H. 532, 629 A.2d 827 (N.H. 1993). Court holds that action is clearly malpractice, but expert witness is required to show the addition step of causation.

50. Restrepo v. State , 550 N.Y.S.2d 536 (1989).

51. Downing v. Gully , 915 S.W.2d 181 (Texas 1996), 1996 Tex App LEXIS 317. Plaintiff's dog, while being neutered, died while under anesthetic.

52. See Tenn. Code § 29-26-115(c) .

53. Mich. Comp. Laws Ann. § 600.5805 .

54. Hitchcock v. Conklin , 669 N.E.2d 56 (Ohio App. 10 Dist. 1995); 1995 Ohio App Lexis 5653.

55. Cal. Bus. & Prof. Code § 4826.1 ; Tex. Rev. Civ. Stat. Ann. article 8891, 2 (1995). See, Williams v. Neutercorp, 1995 Tex App LEXIS 833.

56. Cal. Bus. & Prof. Code § 4883(i).

57. Idaho Code § 54-2112(6); Miss. Code Ann. § 73-39-19(j ).

58. Tex. Civil Code Title 127, Art. 7465a; Va. Code § 54-786.4.

59. In re Kerlin , supra note 16.

60. Eastep v. Veterinary Medical Examining Board , 539 P.2d 1144 (Or. 1975).

61. Willoughby v. Board of Veterinary Examiners , 82 N.M. 443, 483 P.2d 498 (1971).