Ask An Attorney - Archive 3

Ask An Attorney - Archive 3

Dear Ms. Fershtman,

I recently had my mare follicle tested by a vet via rectal examination. In the process of examining her, the vet tore her rectum. The mare developed peritonitis and was rushed to a vet hospital for treatment. Suffering a grade 3 tear of the rectum, it is a miracle she has survived - 4 weeks to date. The hospital suggested she is still not out of danger, due to the possibility of abscessing occurring, however they are hopeful.

At the time of examination, the vet had blood on his glove, ultrasound and her manure. He left the property without commenting on this. I rang a large stud I know and asked them if they thought it sounded like a rectal tear. They said to call the vet back immediately. The vet then agreed that it was a rectal tear and he had seen the blood but hadn't worried about it! He suggested euthanasia until I asked for other options. He said we could try hospital with intensive antibiotics. He agreed it was his responsibility as was payment of hospital bills(in front of two people). Later, he said he will try to claim it through his professional liability, but he is not paying himself. to date I have thousands of dollars of bills and no payment from the vet or his insurance. Where do I stand?

V . Edgar

Ms. Edgar had an interesting but unfortunate question regarding veterinary malpractice and wonders "where she stands," as she has been forced to pay thousands of dollars in veterinary fees to correct a problem caused by a rectal tear during a veterinary examination.

This situation is more complex than it may seem. On one hand, the veterinarian may have promised that he would take responsibility for the thousands in new veterinary bills (but he now denies making that statement). It does not sound like Ms. Edgar's veterinarian out-and-out admitted committing malpractice. A legal battle will, in part, revolve around whether this was a broken promise to pay Ms. Edgar (at best) or the veterinarian's admission of liability (at worst).

Then there's the other issue: was malpractice actually committed here? Clearly, nobody can evaluate the answer unless more facts are known; Ms. Edgar's E-mail inquiry merely scratches the surface. In a veterinary malpractice case, the main question is whether the veterinarian departed from a standard of care and. if so, whether he should be liable. Ms. Edgar ought to direct her matter to a knowledgeable attorney who has been given all the facts.

Also, remember that a suit for malpractice in the '90's typically requires supporting testimony of a licensed veterinarian. A few years ago, a court in one state actually dismissed a veterinary malpractice case because the plaintiff (the one who sued) failed to produce an expert witness to support whether malpractice occurred. Consequently, Ms. Edgar or her attorney need to give the facts and vet records to another veterinarian for review. Once a veterinarian finds malpractice and will testify as an expert witness, Ms. Edgar has a start. Then, she has to prove what her damages (legally-compensible financial losses) are. Ms. Edgar and her lawyer can discuss this, and another expert witness might be in order to support damages alone, depending on the case.

What if Ms. Edgar, after extensive consultation and review of the facts with her lawyer, decides not to proceed with a lawsuit? Is the matter over? Not necessarily. Ms. Edgar can always lodge a complaint with the veterinarian through his state bureau or body that regulates veterinarians. While this avenue certainly will not compensate Ms. Edgar for her losses, these proceedings (if successful) might suspend the veterinarian from practicing veterinary medicine. Maybe that will spare someone else's horse from a rectal tear in the future.

(NOTE: The above is not to be deemed the rendering of legal advice; legal advice is only given in an attorney client relationship where the lawyer receives specific facts. Direct your questions to a knowledgeable attorney.)

-- Julie Fershtman

Dear Ms. Fershtman,

I am a horse owner who lives in Virginia. I co-own with my 18 year old daughter, a 12-year old TB gelding which she used for hunter showing. The horse is boarded in Maryland, and is shown in VA, MD, PA, NC & DE. Since my daughter left for college, we decided to lease the horse out to an adult friend of my daughter's while she (my daughter) is away. The lessee is also using the horse for A & B circuit hunter shows.

My questions are these: in the event of a liability situation that arises while: he (the horse) is being shown, or trailered to/from shows; or while he ("Irish") is at the boarding barn, who bears the brunt of liability: me (owner), the lessee, the trainer/proprietor of the stable?

I've contacted one equine insurance company that said I could not apply for a liability policy to protect myself until the lessee insures herself first. This somehow seems unfair that I cannot protect myself, even if she is unwilling to do so...

Thank you,

Lee Meeks

First, remember that this is the 90's -- you can be sued for almost anything. Therefore, please recognize that we're all targets. Any lawsuit brought arising out of the actions of your horse will almost definitely name you as a party -- even if you were hundreds of miles away from the incident!

Having said that, the "brunt of liability" really would seem to depend on how a given incident occurred. That is, if your horse had a known propensity to bite or inflict harm, and someone got hurt from that harm, there's a stronger argument that you belong in a lawsuit because one might say you were in a position to somehow prevent the danger. On the other hand, if the lessee went out on a ride and -- due to bad "horse piloting" -- rammed into someone, there's a strong argument to say you ought not be involved in that suit. You're wise to look into insurance, especially based on the above. However, I'm not in a position to comment on what the insurance company told you about the requirement that the lessee get insurance.

My best suggestion -- in addition to getting yourself insured ASAP -- is to use a good lease contract, along with a good liability release and indemnification agreement. That's about the most you can do.

Good luck.

-- Julie Fershtman

I have a horse that I board at a boarding ranch. For a discount on the boarding costs, I allow my horse to be used in lessons given by the facility's trainers. I am not present at the lessons, and don't know the people who are taking the lessons. In Minnesota we have the Equine limited liability act. I'm wondering if I could be held liable for a student becoming injured during a lesson on my horse or while grooming or saddling my horse. Do I have cause to worry?

Tracy Sandoval

Please see my response to similar questions from Mr. Tolbert (below). Please also read your Minnesota equine law (found on this website) VERY CAREFULLY! If memory serves me right, I think its immunities apply to non-profit entities.

-- Julie Fershtman

I have recently purchased a 14 year old TB mare who has a reputation for having a good temperament and sound mind. My trainer has asked if I would be willing to let the mare be used for 1 or 2 lessons a week, as a lesson horse. The riding students would be under her supervision for the lesson, but would be tacking up and handling the horse pre/post lesson on their own. Further, the students would not be leasing the horse, their only contact with her would be during their lesson time. My concern is what are liability issues that I as the owner would be facing? If the students were injured during a lesson, could their parents sue me? If the horse was injured while they were riding or handling the horse, could they be held liable so that I could recoup any medical or other costs?

Jason Tolbert

Mr. Tolbert writes that his trainer wants to use Tolbert's horse as a school horse. In this connection, he first asks: My concern is what are liability issues that I as the owner would be facing? If the students were injured during a lesson, could their parents sue me?

The answer, regardless of the state, is "yes." (Remember this is the 90's, and folks sue for ANYTHING, anyway.) Mr. Tolbert's risk comes merely from owning the horse, even if he isn't supervising. Is he a proper party to a suit? Probably not, but it depends on the circumstances of a given incident.

So, what can he do? The main options, as I see them are: (1) say no to the school horse deal, pure and simple; or (2) say yes but require the trainer to include him as an additional named insured on a legitimate policy of liability insurance with decent limits, AND Mr. Tolbert can demand that all students sign a carefully worded liability release that Mr. Tolbert's attorneys approve; (3) say yes, but Mr. Tolbert buys his own liability insurance applicable to the actions of his own horse, that, by its terms, covers the lessons; (4) say yes, and pass on the insurance and the release and keep your fingers crossed that nothing happens.

He then asks: If the horse was injured while they were riding or handling the horse, could they be held liable so that I could recoup any medical or other costs?

That's a tough one, because the trainer (who arguably supervised the "abuse") might be a key party. Do you want to risk a battle with your trainer? Any lawsuit you bring involving injury to (or loss of) your horse will be costly, and the prospect of your recovering your legal fees is unlikely. (Good luck finding a lawyer to take a case involving injury to a horse on contingency -- I certainly don't.)

One option might be to get your own insurance, such as mortality insurance, major medical, and loss of use, and then, if the trainer pays you for use of the horse, you can apply the money toward the insurance premiums. That's the best I can think of for now.

Good luck.

-- Julie Fershtman

My friend has had her 2 year old filly at a local training stable for 4 months professional training. 2 months as a yearling and 2 months as a 2 year old. My 19 year old daughter had gone up and ridden the horse a few times while the horse was being trained, under the trainers supervision, in the ring. 7 days after the horse came home, the horse spooked on the trail and ran out of control, then stumbled, throwing my daughter and killing her. I have recently found out that the horse was supposed to be having its hoofs trimmed every 4 weeks (because they tend to spread) and that the trainers husband, who is a farrier, did not do that. Also, I have come to find out that the trainer and her husband knew of the horses tendency to spook on the trail and run out of control, but did not tell either myself of my daughter this fact. The owner of the horse and I have come to an agreement over this, and I do not wish to involve her in a lawsuit. However, there are still unpaid medical bills and I want to know, can I sue the trainer and her husband for not trimming the feet or telling my daughter and myself about the horses tendencies?

That is a very difficult question, and no attorney knowing what little I do can truly give you an intelligent answer. There are numerous facts that a lawyer needs to explore, including: what state is your friend from? How long did your friend own the horse before the trainer took over? What did your friend know about the horse when he/she bought it? To what use did your friend put the horse before the tragedy occurred? -- and numerous other questions.

In the 90's people sue for just about everything, so if the question is whether your friend CAN sue, the answer is, join the world. But, if the questions are --

* What are the grounds for the suit?
* How does your friend prove a case?
* What evidence does your friend need to state a case?
* Does an Equine Liability Act (if the applicable state has one) affect the situation?
* What are your friend's chances of winning the case?

-- These questions can ONLY be answered in a one-on-one meeting with a lawyer whom your friend respects. The lawyer would need at least 30 minutes of details. That, I must advise you, is the place to go to address the legal aspects of such a tragic and serious situation.

Please accept my deepest condolences to you on the loss of your friend's daughter. As a mother myself with a daughter who love horses, I cannot imagine what your friend must be going through. If your friend remains interested in evaluating legal options here, that person should meet directly with a legal professional.

-- Julie Fershtman