Many people have long term and trusted relationships with their equine vet, and so veterinary negligence presents a potentially uncomfortable situation. However, if you suspect something might have gone wrong with your horse, you might consider recourse to a claim no matter how awkward that might be. Like in all professions, negligence claims not only redress the consequences of specific mistakes, but also act as an important check and balance on the veterinary profession as a whole.
When people think about veterinary negligence the mind usually jumps to a clinical issue – for example a procedure going wrong or the inappropriate use of a drug. But veterinary negligence can be much broader than that, a common example is where a vet misses a key detail at the pre-purchase examination which means the horse is not able to fulfil the job for which it was purchased. Or if the horse is injured whilst under the charge and care of a veterinary practice, there may be a claim even if the horse is not undergoing any treatment or procedure at the time.
Vets will usually have a duty of care to their owner clients when dealing with their horses. The key question is usually whether the relevant act or omission fell below the standard to be expected of a reasonably competent veterinary professional. Often, independent expert evidence will be required to assess the vet’s actions (or inactions) against that relevant standard of care.
Vets are required to carry professional indemnity insurance and so this provides comfort to many claimants that there will be a solvent defendant available to meet the claim. Many vets, but not all, are insured by the Veterinary Defence Society (known as the “VDS”) who are specialist veterinary insurers – Ashfords have considerable experience in dealing with cases against the VDS.
You should be aware that many veterinary practices have terms and conditions, which may have been provided to you at the time of the procedure or some time ago (if a long term relationship). Those terms and conditions can sometimes seek to limit or exclude the vets’ liability for damage to your horse. Whether or not such terms are enforceable will depend on the particular circumstances of the case. However, you should be aware that if you instruct the vet in the course of your business, any exclusion or limitation of liability clauses are more likely to be deemed enforceable and therefore might restrict your ability to seek redress. You are usually in a better position if you instruct vets in your personal capacity, but that will be an objective question of fact and degree, and it does not necessarily matter how you personally (and subjectively) view the instruction.
Even if the terms and conditions do not contain exclusion/limitation clauses these can arise in other documents and therefore inform the overall contractual relationship with your vet. As an example, if a horse is admitted to an equine hospital, on arrival the practice might request that you sign in-patient documents which seek to waive or restrict your rights to sue in the event something goes wrong. Therefore, be careful about what you are asked to sign – similarly, if someone else transports the horse to the hospital for you (such as horse transporters or a groom), they may be asked to sign such documents on your behalf as the owner. That is best avoided because you can become bound by those terms, if that person is deemed to be acting as your agent.
As a general rule, it is a good idea to carefully retain all relevant documents, in particular written correspondence with the vets and others, and invoices. It is common for key discussions to be held verbally, and so it is good practice to make a record of things said during telephone or face to face conversations – consider following up such discussions via email to confirm your understanding of what was said. If an issue arises, often you would want to request records from the vets – including reports, clinical notes and primary records (ultrasound scans, X-rays, MRI).
If the worst happens and the horse passes away, you should consider sending the horse promptly for a post mortem at an independent facility (i.e. a practice entirely unrelated to the potential defendant). If so, a detailed post mortem report should be prepared. Whether you or the vets arrange this might depend on who has custody of the horse’s body at the time. We recommend speaking to lawyers at this point because the scope and detail of the post mortem may become important as the case progresses. Further, and depending on the issues in the case, it might be appropriate for various samples to be taken and retained for future consideration.
If you are in the unfortunate position that something has gone wrong and you are considering a claim against your vet, it is important that you speak to specialist lawyers in order to get the right advice and guidance.
For more information on this article, please contact Rory Mac Neice.
