Justice for Bella? Reflections on settling the first veterinary malpractice case I ever filed
by Marcy LaHart, JD
[This article is brougt to you by Marcy Lahart, a South Florida lawyer who dedicates her practice to cases where she advocates on behalf of animals. She is an adjunct professor of law at the University of Miami, where she teaches a course on animal law. At Ms. LaHart's request I will be "teaching" one of her course's seminars this spring, hopefully helping law students understand the veterinary perspective in cases like the one Ms. LaHart describes below. Her post is a little long for a blog, but it provides an excellent insight into what animal lawyers are up against. Enjoy.]
I grew up reading “All Creatures Great and Small’ and worshipping veterinarians. If I had believed (or was even encouraged to believe) I was any good at science and math, I would have tried to go to vet school myself. I ended up with an undergraduate degree in psychology. Which qualified me to do little except . . . go to law school. I started out doing environmental law and eventually wound up with my own practice doing environmental and animal law.
But enough about me. Let me tell you about my client Dan and the first time I ever sued a vet. It did not come easy. I thought vets walked on water. But Dan’s story made my toes curl. Here it is: Dan is also a lawyer. While he was in law school at FSU in Tallahassee, he went to the Leon County Humane Society and adopted Bella. The shelter staff tried to talk him out of it—she was heartworm positive—they were already planning on euthanizing her because she had this condition that would be expensive to treat.
As appalling as that sounds, shelter worker have to kill thousands upon thousands of perfectly healthy dogs and cats every year. A dog with heartworms, especially a large, fairly non-descript mix breed like Bella, who maybe had a third cousin once removed who was half yellow lab, is not highly adoptable. And as long as she stays at the shelter she is taking up a cage that a cute healthy highly adoptable little dog could occupy.
Dan talked them into letting him adopt Bella. He literally saved her life. I have no doubt that she knew it and appreciated it. Through thick and thin, finals, the bar exam, various girlfriends, various jobs-Bella was a constant in his life, loyal and grateful as they come.
Dan called me after seeing an article about animal law that made passing reference to yours truly. At the time I had read every veterinary malpractice case every reported in Florida, and others from around the country, but I had never actually litigated one. Dan told me the story of how he had recently lost his beloved Bella.
He got up one morning ready to head to work and found Bella in the living room with two empty boxes of rat poison. He did not know the poison was in the house, and to this day does not know who purchased it and put it under his sink. Perhaps a roommate or maybe his mother. Doesn’t really matter now. Bella found the poison and ingested it, and Dan, a responsible and loving pet owner, immediately rushed Bella and the two empty boxes to his veterinarian.
So he does not sue me for defamation (Although truth is a complete defense, and everything I say here is true, but who needs the hassle?), I will identify Dan’s vet as Dr. Defendant. Dr. Defendant took some blood from Bella, and according to my client, and pushed it around on a microscope slide, something Dr. Defendant called in his notes a “gross clotting time test.” (My expert witness, who has practiced small animal veterinary medicine since I was in diapers, says there is no such thing as a gross clotting time test.) Dr. Defendant administered a single shot of vitamin K to Bella- and sent Dan and Bella on their way. He did not recommend follow up blood testing to make sure her blood was clotting properly. Nor did he prescribe the vitamin k capsules that would have saved Bella’s life.
Nine days later, Dan came home late and was watching TV. He realized that Bella was not right next to him like she always was when he was parked in front of the tube. He went to look for her, and found her on the floor of his bedroom, lethargic, blood oozing from her elbows, obviously in distress. Dan rushed Bella to the closest emergency clinic, arriving at 1 am. The diagnosis was “rat poison intoxication.” The treating veterinarian administered another vitamin K injection, prescribed vitamin K capsules for the next 4 weeks, and advised Dan that Bella should follow up with more diagnostic blood work in a few days.
Dan and Bella returned home and Dan slept on the floor with his dog-she was too weak to get up on the bed next to him where she usually slept. (I relayed this story to a girlfriend of mine who was so moved by Dan’s compassion and loyalty that she immediately asked to be set up with him, but that is another story.) The next morning Bella was obviously still very sick, and Dan took her to another veterinarian, whom for purposes of this story I shall call Dr. C. Dr. C aggressively treated Bella, and arranged an emergency ultra sound, but it was too damn late. She was bleeding profusely into her chest, and died at the hospital where Dr. C works.
Prior to this case I wouldn’t have known how to properly treat a dog that has ingested rat poison, neither did Dan. We were both absent from law school the day that was covered I guess, which is why Dan had to rely upon Dr. Defendant’s expertise. But after Bella died, Dan told his aunt, who is a veterinarian in another state, about what had happened.
She told him that in veterinary medicine 101 vet students are taught that if a dog has ingested this particular kind of rat poison, vitamin k capsules should be prescribed to be administered a couple times a day for 3 weeks minimum. (She also said that the night Dan took Bella to the emergency clinic, Bella should have been admitted, not sent home, and chest ex-rays and clotting profiles should have been performed.)
My subsequent research confirmed Auntie Vet’s opinion; basic standard of care requires that Dr. Defendant should have done a clotting profile, and in addition to the injection of vitamin k he should have prescribed vitamin k capsules for 2-4 weeks. And a diligent veterinarian would insist that the blood work be repeated a day or two later after the poison was ingested, and again after the vitamin K capsules were stopped to ensure the dog could clot her own.
My client filed a complaint against Dr. Defendant with the Florida Department of Business and Professional Regulation, the state agency that regulates veterinarians. Bella’s death was in January of 2003. The Department decided that there was “probable cause” to investigate Dan’s complaint, and the case was reviewed by an expert. The Department finally decided that Dr. Defendant had breached the standard of care, and in June of 2005, two and a half years after Bella died, Dr. Defendant had to pay a whopping $750.00 fine.
The civil case I filed against Dr. Defendant limped along, and candidly I must take some responsibility for the fact that it was not resolved sooner. In the time that the case was pending, four different associates from Sellars, Marion & Bachi worked on the case. Sellars, Marion & Bachi is the law firm of choice for the insurance company that insures every vet in the state-hence they have been my opposing counsel in probably a dozen cases now. I wish I had a dollar for every time one of their attorneys has said in court “Like it or not your honor, animals are property under the law.”
Even insurance defense attorneys seem to feel a little sheepish about proclaiming that animals are just property, like your desk or toaster or dirty socks. I actually became good friends with attorney number 2 of 4, in spite of the fact that at one point cited a 1901 statute stating that you can shoot a dog that is harassing your livestock as evidence for why Dr. Defendant should be off the hook. After she left the firm I ended up being with her for moral support when her beloved, geriatric cat, with her since college, but nonetheless property under the law, was euthanized. She was a basket case. The irony was palpable, but I kept my mouth shut.
When attorney number one took Dan’s deposition, his questions implied that Dr. Defendant’s defense would be that Bella must have gotten into rat poison again after Dr. Defendant treated her. Puhleeze. That is what we called in law school a “bag head argument.” One you would not want to make to a judge or jury without a paper bag over your head. Dan handled his deposition admirably- my 6ft something very handsome client with a deep voice that rivals Carl Castle teared up when talking about his dog. A jury would have loved him.
I took Dr. C’s deposition, the vet that treated Bella after the emergency clinic, the vet whose best efforts to save Bella were for naught. I have a soft spot in my heart for Dr. C., he is a warm, genuine person who sincerely cares about animals, and is nonplussed by pet store vets that provide minimum care to a new pet store puppy in exchange for client referrals from the pet store. He is not quite as outraged by it as I am, but then few are.
Unfortunately he suffers the malady that infects most vets, reluctance to call a spade a spade when the spade is a veterinary colleague. Because of my aforementioned soft spot for Dr. C I was gentler than I should have been in his depo. Off the record, with my opposing counsel out of the room, he said that Dr. Defendant is widely regarded as a quack and his treatment of Bella was gross negligence. But on the record he said that he could not say what is negligence or is not negligence. I did not nail him for it because I guess I am not as bad ass as a litigator as I would like to think.
After the depo he apologized, again off record, saying if the defendant weren’t right down the road from him, if he owned the practice he works at and didn’t have to worry about the wrath of the boss man for ratting out a fellow vet, he would have been more candid.
Sellars, Marion and Bachi tried repeatedly to have the case decided on motions for summary judgment; they were unsuccessful, in spite of Dr. Defendant’s self serving affidavit that he was not negligent in any way in his treatment of Bella. Obviously paying a fine to the Department of Business and Professional Regulation had done nothing to instill humility.
Much too long after I filed the suit against Dr. Defendant, we settled out of court for $4,500.00. We had a great expert, Dr. Greene, who was the same expert that had been retained by the State to review the file for the Department of Business and Professional Regulation. He gave a great deposition-he always does. And he is not just a hired gun that will say whatever you pay him to say-he is objective and thorough and honest and I trust him immensely. He is one of the only vets in the whole state that will testify against another vet, but he is also very expensive, and few of my clients can afford him.
Why did we settle for $4,500? The measure of damages in a veterinary malpractice case in Florida is unclear. My four sequential opposing counsel argued that even if Dr. Defendant was negligent (which of course he wasn’t, that nasty business with the state board notwithstanding) all my client was entitled to is Bella’s fair market value—the fee he paid to adopt her—I think $65.00. My complaint asserted that Dr. Defendant was “grossly negligent”, meaning much more negligent than a simple oops.
I claimed, and I fully believe, that the Defendant’s conduct showed indifference to Bella’s life, and that therefore Dr. Defendant was on the hook for Dan’s emotional distress, not just Bella’s fair market value. Dr. Greene would have testified that the Defendant was grossly negligent, and I have no doubt he’d have done a kick ass job.
But the lawyers for the insurance company had filed what is called an “offer of judgment”-they had offered to settle the case for $2,700- and if we went to trial and the final jury verdict came back 25% less than the offer, we would have to pay Dr. Defendant’s attorney’s fees. If the jury did not agree that Dr. Defendant was grossly negligent as opposed to just garden variety oops negligent, the verdict would be zero and we would be stuck paying for Dr. Defendant’s legal fees.
Given that risk, along with the fact that Dan has moved out of state, had a beautiful little girl with his new wife, and is not in a position to cough up the considerable expense to try a case, and the fact that whatever the verdict we obtained, it would not bring Bella back and Defendant’s insurance company would cover it up to the policy limit of $100,000 ( the largest veterinary malpractice judgment to date is $35,000), meaning it would not cost Dr. Defendant a single dingle dime no matter what, we took the settlement. I wanted to hold out for more but Dan was sick of the whole back and forth with the insurance company, I think to him it only served to cheapen Bella’s life and of course I understand how he felt.
Veterinarians have a sweetheart deal on malpractice insurance, it is cheap because the traditional measure if damages is the dead pet’s fair market value, and they can’t be dropped no matter how many valid claims against them. So the matter is put to rest, and Dr. Defendant, who to this day has never taken responsibility for Bella’s death, or shown the slightest bit of remorse, won’t lose his insurance—nor will his rates be increased. Does he have any incentive to be more careful in the future? Thanks to his insurance company and the spineless lackadaisical state regulation of veterinarians, precious little.