If you are a horse owner, you have likely already realized that veterinary visits are a fact of life that cannot be avoided. In fact, most horse owners develop a positive and trusting relationship with their veterinarians over time. But what happens if your trusted vet makes a mistake that causes serious injury or even death to your beloved horse?

Lawsuits based on veterinary malpractice were nonexistent until the 1950s or so, but have become increasingly more common in recent times. Still, despite their growing numbers, lawsuits based on veterinary malpractice remain very difficult and quite expensive to litigate. The reasons for this revolve around the particular standard of proof required for a professional malpractice action, and the types of damages that may be claimed.

If a horse owner believes that their vet has done something wrong and wishes to sue them in court, they must be prepared to prove the following elements:

a. The vet owed a duty of care to the animal;

b. The vet’s actions (or inactions) violated that duty by failing to measure up to the standard of care within the veterinary profession

c. The vet’s failure to conform to the standard of care directly (“proximately”) caused injury or death to the horse

d. The injury to or death of the horse resulted in provable economic damages

Duty of care: This first element is fairly self explanatory. If you entrust your horse to a vet, then that vet owes you a duty to exercise care in the treatment of your animal. Of course, there are those occasional cases where a vet might deny that he owed a duty of care under certain circumstances (i.e. a vet coming to give a horse a dental cleaning is not under a duty of care to diagnose or treat another underlying health condition). For the most part, though, if you are paying a vet to take care of your horse, the vet owes to you a duty to exercise care in accordance with industry standards.

Failure to comply with the standard of care: Unlike ordinary negligence cases, where the measure as to whether a person was negligent is whether he/she acted with the ordinary care of a reasonable person, a malpractice case measures the negligence of the professional by whether he/she met the generally accepted standard of care for the particular industry. In the event of equine veterinary malpractice, this would be the standard of care generally accepted by other equine veterinarians. This is not something that can be proven by a layman’s opinion, but rather requires expert testimony, i.e. typically the testimony of another veterinarian. This poses two problems. First, it is often difficult to get one veterinarian to testify against another. Unless the actions of the vet were so atrocious as to leave no doubt, many veterinarians respect the judgment of their colleagues and are quite reluctant to be labeled as “the one” who will turn on their colleagues in the industry. Second, even if you find a veterinarian who is willing to testify, they are likely to be rather expensive; a judgment call needs to be made as to whether the cost is worth the risk and the possible amount of damages recoverable (more on that later).

The Actions (or inactions) proximately caused injury/death: This may seem clear cut but it is not. Many a malpractice case turns on whether there were intervening factors that played a part in injury or death. For instance, a horse owner may complain that a vet failed to diagnose a particular life-threatening condition, but the vet may argue that even if they had diagnosed it, there would have been nothing they could do to prevent the horse’s death. Or consider the case where a vet administers the wrong medication for a horse, but the horse later dies from complications not related to the medication. Even though the vet was clearly wrong in administering the wrong medication, the error was not proximately related to the horse’s demise. Proving proximate cause is never a given and just as with the standard of care, often requires expert testimony.

Damages allowed: As much as a horse owner may love their animal, under the law, they are still considered “property.” Thus, other than in a handful of states, at present, a horse owner can only sue for economic damages related to the loss of the horse, not for non-economic damages such as pain & suffering, mental anguish (for themselves or the horse) and loss of companionship. Instead, damages are generally limited to the fair market value of the horse and any related consequential damages. The market value of the horse takes into account not only the purchase cost but also any special attributes (i.e. was this a blue ribbon show horse? A highly profitable breeding horse? Destined to win Triple Crown?) Keep in mind that the age and general health of the horse prior to the claimed malpractice are also taken into account. Thus, the horse may have died at  the hands of the veterinarian, but there is the assumption that the horse was sick or injured to begin with, which prompted the visit by the vet. This will be taken into account when assessing the value of the horse. Consequential damages include such things as additional costs incurred as a result of treatment or care (i.e. special feed, medications, and so forth). However, it has to be proven that these additional expenses were directly related to the injury caused by the vet, and wouldn’t have otherwise been necessary. Consequential damages can also include actual loss of income and profits (if the horse had been used to generate income or profits), forfeited boarding fees, loss of income potential (i.e. the horse owner ran trail rides and had to cancel future bookings), and any other such economic loss that can be linked to the loss of the horse.

It is worth noting that, in the past few years, there has been a growing tendency in the Court’s to consider the intrinsic value of the horse. The intrinsic value is basically the horse’s personal value to its owner and is similar in many respects to the additional value some Courts might give to property that is considered to have personal or sentimental value (such as a family heirloom). This approach attempts to address the emotional value people place on their pets and to reach some sort of compromise in treating animals merely as property when they obviously mean much more to those who keep them.

It is always heartbreaking to lose a horse and it is tempting to want to lay the blame somewhere. However, before deciding to sue a veterinarian, it is imperative that you consult with a reputable attorney and carefully consider the cost, time and uncertainty in proving the case in relation to the amount you might stand to gain.

Mati Jarve is the managing partner of the Marlton, New Jersey law firm of Jarve Kaplan Granato, LLC. He is certified by the New Jersey Supreme Court as a Civil Trial Attorney and theNational Board of Trial Attorneys as a Trial Advocate. Licensed in New Jersey, Pennsylvania and Arizona, he maintains a national practice in civil litigation, including equine related issues.

This article is for informational purposes only and is not intended to be legal advice. If you have a specific legal question or problem you should consult with an experienced and knowledgeable equine law attorney. Questions, comments or suggestions can be e-mailed to mjarve@nj-triallawyers.com, by visiting www.nj-triallawyers.com.