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All Bark and May Bite

(contained in July/August 2002 issue of California Veterinarian Magazine—Volume 56, Number 3)

In recent months, veterinarians have become increasingly concerned about various legal issues that were heretofore not closely considered within the veterinary community.  The much-publicized Whipple dog-mauling case has forced veterinarians to reflect upon their professional and legal obligations, if any, to warn about the dangerous propensities of a particular animal.  This same case has also generated questions and concerns about veterinarians’ rights, duties, and obligations when enlisted to act as a witness in connection with litigation, either in an expert or “percipient” capacity.

In the next several issues of California Veterinarian, we will endeavor to assist veterinarians in dealing with assorted legal matters that are of increasing concern to California veterinary practitioners.   In this and the next issue, we discuss a veterinarian’s duty of care in regards to warning of an animal’s dangerous propensities.  The first part of this analysis requires outlining relevant law regarding this “duty to warn” in an attempt to identify principles defining the parameters of such a duty, including when a warning may be required and who must be warned.

General Duties of Care
Veterinarians are familiar with the fact that they must provide professional veterinary care in a competent and humane manner, and that all aspects of veterinary medicine are to be performed in a manner consistent with current veterinary medical practice within the State of California. (See, e.g., Title 16, Cal. Code Regs. § 2032.)  In this regard, a veterinarian’s general duty of care is defined by veterinary “community standards.”  As these “community standards” are evolving, so is the veterinarian’s duty of care.

In analyzing duties imposed on a veterinarian in connection with his or her rendering of professional services, there are certain standards that are employed.  Such a “duty” analysis is rooted in the legal principle of negligence.  Thus, if a veterinarian does not carry out his or her duties in accordance with relevant community standards of professional care, that veterinarian has acted negligently.  To maintain a valid cause of action based upon the negligent acts or omissions of a veterinarian in the performance of professional duties or services, a plaintiff must establish (1) the basis for the duty (generally by the veterinarian having been retained to perform veterinary services); (2) the veterinarian’s failure to exercise the appropriate standard of care; and (3) that the veterinarian’s departure from that standard was the proximate cause of injury.

Defining the Duty to Warn
Of course, the negligence analysis set forth above usually comes in the context of a veterinarian’s provision of care to the animal itself and injuries to the animal resulting therefrom. Although there are certain statutory and regulatory provisions regarding veterinary notification duties in particular circumstances (such as California Business and Professions Code section 4830.5, which states that whenever a veterinarian has reasonable cause to believe that a dog has been injured or killed through participation in a staged animal fight, the veterinarian must promptly report the incident to the appropriate authorities, or Title 17, Cal. Code Regs. § 2606, imposing a duty on “any person” having knowledge of the whereabouts of a rabid animal or the fact that a person or animal has been bitten by a rabid or suspected rabid animal to report to the local health officer), there is remarkably little by way of statute or case law (in California or elsewhere) regarding a veterinarian’s duty, if any, to warn of an animal’s dangerous propensities.  Still, several cases provide some guidance as to the application of the duty to warn.

For example, at least one court found that a veterinarian was not liable for the failure to warn of a dog’s dangerous condition where the dog, following a veterinary examination, bit the owner.  In McNew v. Decatur Veterinary Hospital, Inc. (Ga. 1951) 85 Ga. App. 54, the court concluded that the plaintiff owner did not prove that the veterinarian failed to exercise the degree of care that would have been exercised by a prudent veterinarian under the same circumstances in instructing the owner how to care for his dog, which had been treated for injuries and examined for rabies after itself being bitten by another dog.  Although the veterinarian did not provide a specific warning about the dog’s dangerousness, the veterinarian did advise the owner to keep the dog confined for a period of 21 days.  This instruction was deemed sufficient to preclude a finding of liability.

In Branks v. Kern (N.C. 1987) 320 N.C. 621, the North Carolina Supreme Court held that there was insufficient evidence to allow a jury to find that the veterinarian defendant violated a duty of care to the plaintiff owner by failing to restrain the plaintiff’s cat during a catheterization or by failing to warn the plaintiff of the risks of remaining in close proximity to the cat during the procedure.  The court found that the plaintiff, who had observed the procedure in its entirety, was in as good of a position as the veterinarian to appreciate the risk that the cat would try to bite someone in its immediate vicinity.  This conclusion was bolstered by the fact that the cat had previously tried to bite the veterinarian’s assistant in the plaintiff’s presence, and was therefore clearly revealed as a hazard at that point.  The veterinarian was held not to have a duty to warn of a danger about which the plaintiff had equal knowledge.

In Fazio v. Martin (N.Y. 1996) 227 A.D.2d 809, the owner of a dog was held not to have knowledge of the dog’s vicious propensities prior to the dog’s attack on a four year-old child, and therefore not liable for the injuries suffered by the child.  The previous day, the dog had been treated by a veterinarian after a nail had become stuck in the dog’s paw.  The veterinarian supplied a dosage of antibiotics, but released the dog with no special restrictions or warnings.  The next day, while the dog was being walked, the child attempted to pet the dog and was attacked after accidentally stepping on the dog’s injured foot.  The defendant owner’s case was aided by an affidavit from the veterinarian, in which the veterinarian indicated that the dog displayed no aggressive tendencies when discharged, the antibiotics prescribed for the dog would not cause mood swings, and the only instructions given to the owner were routine and related to the cleaning of the dog’s bandages.  Notably, the veterinarian was not named as a defendant in the lawsuit.

Certain general principles may be culled from the above decisions.  First, where an animal’s dangerous propensities are as readily apparent to the owner as the veterinarian, it is unlikely that an owner would have a legally cognizable claim against the veterinarian for a failure to warn.  Whether this circumstance creates a flaw in the plaintiff’s affirmative case or is instead properly utilized as an affirmative defense by the veterinarian is immaterial for our purposes.  The bottom line is that a veterinarian probably cannot be held liable for a failure to warn an owner who already has knowledge of an animal’s dangerous propensities.

Second, if the veterinarian has no knowledge, or cannot reasonably be said to have known, of an animal’s dangerous propensities, it is highly unlikely that the veterinarian could be held liable for a failure to warn.  Although a veterinarian will be held to a higher standard of constructive knowledge (i.e., what the veterinarian “should” have known based on the community standard of veterinarians) than a layperson, there will be some circumstances where an animal’s future conduct cannot be predicted, even by a veterinarian.  Moreover, the California “dog bite” statute (Civil Code section 3342, imposing civil liability for injuries suffered from a dog bite) applies only to owners of dogs, not to veterinarians.  Therefore, a veterinarian will not be subject to strict liability under the “dog bite” statute, and any claim for indemnification by the owner against the veterinarian would seem to require a finding of negligence.

Third, a veterinarian may not have to utter certain “magic” warning words in order to fulfill his or her duties.  Other types of instructions or directions, such as the instruction to keep the pet confined in McNew, may suffice.

Obviously, these general principles are not extremely helpful in terms of clearly defining a veterinarian’s duties with respect to warning owners, staff, and other individuals about a given animal’s dangerous propensities.  Simply put, the issue of veterinary liability for a failure to warn of dangerous propensities is a decidedly undeveloped body of law.  The above cases focus only upon the duty to warn an owner of the dangerous propensities of an animal, and do not address the scenario of concern in the “Whipple” case, where a third-party who was a stranger to the veterinarian was injured by a dangerous animal.  In the Whipple matter, the veterinarian did warn the owners that the dog had dangerous propensities and to take prophylactic measures.  If such warnings become the “community standard,” the veterinarian’s duty to provide warnings could be expanded.  With more and more publicity being directed at dog attacks and the like, it is only a matter of time before veterinarians find themselves on the “business end” of a civil lawsuit by an animal attack victim.  In the next issue, we offer some suggestions about what steps veterinarians can take in order to fulfill their duties and minimize their liability.