A malpractice doctrine

A malpractice doctrine

Aug 01, 2007

News Poll
NATIONAL REPORT— Her message is stark. Design a fair system to resolve malpractice claims or the courts will.

Founder of the American Bar Association's Animal Law Committee, Barbara Gislason, a Minneapolis attorney and noted expert, spoke with DVM Newsmagazine about a new field she is helping pioneer — animal law.

From veterinary malpractice to her advocacy for Good-Samaritan laws for veterinarians, there is little question the legal arena for the $10 billion veterinary services market is changing rapidly.

The balance of justice: Animal-law expert Barbara Gislason believes the stage is set for change in veterinary malpractice law. Organized veterinary medicine should take it as an opportunity to design a system that is fair for consumers and veterinarians.
"It's happening so fast, we can't even see it," Gislason says.

Watched and feared by industry insiders for the last decade, the courts have just scratched at emotional damages in cases of malpractice. Even the largest veterinary malpractice settlement in U.S. history, nicknamed the Bluestone case in Santa Monica, Calif., saw a judgment of $39,000 in 2004, but it cost the plaintiffs an eye-watering $350,000 to get the verdict. Custody disputes involving pets have been reported in New York, Maryland and Texas.

Added up, the status of animals in society is changing, and so will court decisions regarding a pet's emotional value to owners, Gislason says. It's just a matter of time. Consider these well-published professional trends:

  • Escalating costs of veterinary care
  • Relatively low purchase prices for non-purebred pets
  • Greater access to sophisticated care
  • Highly variable standards of care
  • Tightening human-animal bond
  • A growing cadre of lawyers working on animal-law cases (estimated at 5,000 last year).

Historically, the remedy has been an animal's replacement value in cases of veterinary malpractice. In the legal world, that's just not sitting well.

"One of the things that is bugging animal lawyers is that these people are being told these animals do not have value," Gislason says.

There is an economic disincentive for owners to pursue a malpractice case, when courts simply award replacement value. In many cases, the animal was free.

Low pet values limit liability for veterinarians when cases are botched. Good for veterinarians, right?

The problem, Gislason argues, is that the issue of fairness isn't in balance, and it caught the eye of the legal community.

"I don't think this one is going to go away. There has to be some kind of standard. When a case comes up that every veterinarian would agree is terrible, there is no remedy. In the next five years there will be a groundswell of lawyers who are motivated to do something about that."

A new model

Her message? Veterinary medicine should pursue alternatives to the human malpractice model.

"It seems to me that enlightened veterinarians could come up with a comprehensive scheme that is not based on the medical-malpractice model," which could include committees to screen the frivolous cases. "I don't believe that society views animals identical to people," Gislason says. Therefore the profession could work with the legal community to design an entirely new model that would be fair to veterinarians and consumers.

"To say that it might become like the human model is unlikely. I mean, that might happen in 300 years. There could be much more reasonable measures taken."