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Zachary
Zachary, Attorney
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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Animal malpractice question: Our cat had a surgical procedure

Resolved Question:

Animal malpractice question:

Our cat had a surgical procedure performed incorrectly, which has resulted in numerous and ongoing problems - and additional expense. The animal hospital offered to refund what we paid them, and to reimburse the other associated costs we've since incurred.
However, they have since retreated, indicating that the doctor in question did nothing wrong, and they are now only willing to refund the surgical fee as a 'courtesy' (but no other costs).

I understand why they're closing ranks to protect their interests, and have probably been advised by their attorney or insurer not to admit that any misconduct ocurred. However, the records indicate otherwise.

We intend to demand a copy of our pet's medical records, but feel strongly that at the very least, we are entitled to reimbursement of the other costs we've incurred (not to mention the pain and suffering our poor baby has been subjected to). What are our options? Small claims court?
Submitted: 1 year ago.
Category: Legal
Expert:  Zachary replied 1 year ago.
What state are you in?
Customer: replied 1 year ago.


Illinois.

Expert:  Zachary replied 1 year ago.
In an vetrinary malpractice lawsuit, you have to establish that the veterinarian was negligent in the surgery and that this negligence caused you damages. The damages you may recover for this are (1) the costs of the surgery; (2) the increased costs of any veterinary care thereafter directly related to the malpractice surgury; and (3) the loss of value of the pet (this last element usually applies to horses or show animals). That is the limitation of the damages you may recover. You are not entitled to damages for your own pain and suffering and the law does not recognize animal pain and suffering as recoverable.

The problem with asserting such a claim in small claims court is that you will have to establish by expert testimony that malpractice was committed. In other words, you are going to have to hire a veterinarian to review the other veterinarian's actions, issue a report stating that there was malpractice, and then come in and testify at court regarding the malpractice. This of course can be an expensive part of the litigation.

Thus if all you are suing for is $10,000.00, which is the upper limit of small claims court in Illinois, the real question is whether it is worth the investment of hiring an expert (which costs generally anywhere between $2,500 and $10,000 to start), and risking that you might not win the case. All lawsuits are a crapshoot to some extent.

Do you have an opinion from another veterinarian that the surgery was done negligently?

I look forward to hearing back from you.

-ZDN
Customer: replied 1 year ago.

Not only has our own vet told us that the procedure was done incorrectly, one of the other surgeons at the same hospital where the surgery was done had to do a small, corrective procedure the following day. However, in order to fully correct the problem, the full surgery would have to be repeated, which carries risks we're hestitant to expose our cat to.


I suppose our vet could testify, although I'm sure it would be awkward. I think we probably have enough evidence to connect other bills to the original surgery, witout an expert. We're only talking about less than $1,5000 in damages, so this isn't about the money (everyone says that, I'm sure). I particularly don't like the fact that what the vet did was careless, and that the business owner told us he would work with us, and has now retracted the offer.


 


Other than demanding all medical records - or filing suit, is there anything else you can suggest that might effectively communicate that we take this very, very seriously - and are standing our ground? Am I right in suspecting that the owner has probably been advised that by paying the other vet bills, he's admitting 'guilt?'


 

Expert:  Zachary replied 1 year ago.
Hi,

Simply being able to show that the bills are related is not enough to establish malpractice. It is a legal requirement that malpractice is established through expert testimony. There is no way around that hurdle.

However, I think you really should be able to force them into a settlement position by filing a malpractice/breach of contract claim in small claims court. The breach of contract claim would be that you paid for one procedure but got another and it was done incorrectly. You might be able to get around the requirement for expert testimony that way.

However, given the fact that the owner made an offer and has now retracted it, I think there is a likelihood of settlement. It is probably true that the owner retracted either because he obtained advice from either his insurer or his attorney, or because he wants to keep the money (plain and simple). Some pressure on his would probably change his mind.

Here's what I would do: (1) send a formal letter demanding payment of all the expenses within 30 days or you will file suit and you go to the press and place negative commentary about them on the internet; (2) if they do not pay up then file the small claims suit 30 days later and assert both malpractice and breach of contract. The small claims court may let you get away with not needing an expert witness (as the procedural and evidence rules are relaxed in small claims court). Also, I'm betting that the offer previously made would come out again after the owner gets served with a lawsuit.
Customer: replied 1 year ago.

A few things:


The owner did send us a check to reimburse us for the surgery, which I still have. Although he's now trying to characterize it as a courtesy refund, I don't think it's routine for a surgical fee to be returned if there's not a valid reason. Does that support our position, or can he just argue that we weren't satisfied, so rather than argue, he just gave us a refund?


 


I don't know that threatening to post negative comments is wise for a number of reasons, not the least of which is, it may smack of 'extortion, ' unless we still posted them even with a full reimbursement (or am I just being overly cautious here)?


 


I also don't think we should threaten to file suit unless we're prepared to pursue it. Can you explain how a breach of contract could be argued without alleging/including malpractice? My concern is that if we don't drag our vet to court to testify (which he may not want to do), we could lose by default, and be on the hook for their legal costs.


 


I happened to be talking with someone recently who lost their pet due to a serious vet error (thet th evet fully admitted). They had tremendous documentation, including incriminating documents, as well as a notorized statement from another vet supporting their claim, but they still lost because the 'expert' witness didn't appear in court (and this was in small claims).

Expert:  Zachary replied 1 year ago.
In regard to threatening suit and negative commentary, the approach is definitely aggressive, but they have renegged on their agreement to cover the additional costs. It is their malpractice and now breaking their word that you would be commenting about. They are the bad guys, not you. The pressure is what you are going for.

In regard to the breach of contract claim in small claims court, often times the court will say that this really is just a repackaged malpractice claim (which is true) and dismiss it and only allow you to go forward on a malpractice claim. So there is some risk in pursuing a law suit without an expert. If you subpoena your veterinarian, then he has to show up or will be in potential contempt of court. The court won't dismiss your case when you have a subpoena outstanding. Nevertheless, the veterinarian could simply give you bad testimony and refuse to call the other vet's acts malpractice. This is because most doctors won't testify against another doctor unless they are being paid for their opinion in some way or another.

So, if you are not prepared to hire a malpractice expert, then filing suit does carry risk of having the case dismissed with costs assessed against you. Nevertheless, the threat of filing suit is often enough pressure to achieve your goal. Even if you don't end up filing suit, this should not stop you from threatening to in the demand letter.

In the end, the only way to force them to do the right thing is to sue them, so that may be your only recourse if the pressure you apply with the letter does not work.

-ZDN
Zachary, Attorney
Category: Legal
Satisfied Customers: 3927
Experience: Lead trial/International commercial attorney licensed 11 yrs
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