Red Rover, Dead Rover, I Send This Suit Over

First, a friend told me of Freddie's undergoing surgery for a slipped disc. Then another friend asked for a recommendation for a doctor for Ashley's kidney stones. And I was knocked off my feet when still another person told me of Bailey's unsuccessful battle against prostrate cancer after enduring two years of chemotherapy.

Were these people talking of the medical problems of a beloved family member? A trusted friend? A loved one? "Yes" to all three, for these people were near tears in recounting the medical tragedies of dogs. According to recent studies, the number of people who consider pets to be like family members has risen from 49 percent in 1979 to 80 percent in recent years.

And, like a family member, Americans are willing to spend thousands of dollars to make Fido and Fluffy feel better again. Veterinary care certainly has come a long way from puppy shots and kitty hairballs.

The pet business is bug business with $8.7 billion spent each year on veterinary care. And by some estimates, animal medicine is now being practiced at a level of technical sophistication that rivals that found in human medicine.

But, of course, like with all medical practices, mistakes can happen. Apparently, every dog has his day. And with the burgeoning veterinarian business comes a growth in the number of malpractice claims filed against these doctors for negligent care and treatment. (This is really true, folks!)

The latest available figures indicate that between 1980 and 1986, claim frequency against veterinarians reportedly rose to one in 17 from one in 25. This figure translates into an average of six claims filed per 100 veterinarians.

Owners of the injured animals and the courts have invoked a number of theories of liability as a result of poor veterinary care, including breach of contract or warranty, gross ignorance and lack of skill, bailment - even loss of companionship, emotional distress and mental anguish - but the gravamen of most cases lies in negligence. In these types of cases, the plaintiff generally alleges that the veterinarian failed to use such reasonable skill, diligence and attention as might ordinarily have been expected of careful, skillful and trustworthy people in the profession.

Illinois courts, though, require proof of some intentional tort of some form of aggravated negligence in disciplinary actions against veterinarians. Veterinary Medicine and Surgery Practice Act of 1994, 115 ILCS/25 (1996).

Take, for instance, the case of Charlie, an 18-month-old female German Shepard who fell ill one Memorial Day weekend. Her owners in south suburban Chicago grew worried with Charlie's increased loss of appetite, listlessness and heightened temperature.

Unable to contact their regular veterinarian on the holiday weekend, the owners finally reached Dr. Maynard Massa. Upon seeing the dog, Dr. Massa recommended surgery and removed the dog's reproductive organs. The dog died the next day. The owners had a necropsy performed; and it was discovered that the dog, in fact, died from respiratory problems, including pneumonia.

At an administrative hearing, the state's Veterinary Examining Committee found the veterinarian guilty of gross malpractice. The committee revoked the license of Dr. Massa, a veterinarian practicing for more than 20 years. Massa v. Department of Registration and Education, 116 Ill.2d 376, 507 N.E.2d 814 (1987).

But is this higher standard really fair to the plaintiff? Given the limited valuation of pets, which may be zero when basing it upon the property value of the animal (Jankoski v. Preiser Animal Hospital, Ltd., 157 Ill.App.3d 818, 510 N.E.2d 1084 (1st Dist. 1987)), perhaps it is only through the threat of disciplinary actions that plaintiffs can be assured that veterinarians will properly practice medicine.

In some ways, the practice of veterinary medicine is more complex and multifarious than the practice of human medicine in that injuries to animals can be more far-reaching.

Causes of action may lie for failure to restrain an animal who lashes out at a nearby owner during a sensitive exam, or failing to diagnose a communicable disease in cattle meant for human consumption, or failing to warn a jockey of an injured horse that falters during a race, or failing to warn of the effects of medication on an animal's temperament.

Recently, a major Chicago newspaper reported that rabies, a deadly animal virus communicable to humans, is a growing threat in Illinois with increases of the disease in the last five years in animals in states such as North Carolina, Pennsylvania, Alabama and Florida.

To the extent that professional expertise is involved in a loss or injury, the case should be governed by legal principles developed to determine the professional liability of veterinarians akin to human medical malpractice law. Certainly, through experts, plaintiff should be required to prove the recognized standard of care as well as the defendant's deviation from that standard when treating the animal. But to determine professional responsibility based upon a higher standard of gross negligence is inapposite to the developments in this field of law.

By the way, keep in mind that February is National Pet Dental Care Month. Have you brushed your dog's teeth lately? Go ahead, make Ace Ventura proud.?