By John Alan Cohan

I get occasional phone calls from distraught horse owners who have lost a horse due to illness or unexpected death while undergoing veterinary care. The idea of veterinary malpractice is something that covers a wide range of negligence in the care of horses. Veterinarians are required by state law to treat animals by using such reasonable skill, diligence and attention as may ordinarily be expected of a careful, skillful and trustworthy person in that profession.

Negligence by a veterinarian is actionable. If your horse dies shortly after a veterinarian conducts a worming procedure, for instance, because the fluid tube had been improperly inserted and caused fluid to enter the horse’s lungs (a real case from Louisiana) – you have a strong case of veterinary negligence.

Liability for veterinary malpractice can involve misdiagnosis if that results in death or extraordinary fees for getting the animal back on its feet. Liability can also apply to an injury arising from unskillful or improper surgical operations resulting in death.

Liability depends on whether the veterinarian violated the duty of “due care.” The statute of limitations for negligence claimed against a veterinarian is the same as the statute of limitations for medical malpractice (usually one year).

It’s a delicate matter of whether you actually want to sue for damages, for often there is a great deal of emotional distress just in re-living the tragedy and participating in the litigation. Also, you have to prove negligence, and veterinarians understandably want to defend themselves with the help of their insurance company’s lawyer, as best they can. Damages, too, can be unusually hard to prove, apart from the fair market value of the animal.

Damages for loss of future earnings of the horse or for sentimental value are very difficult to recover. Damages don’t usually involve much more than out-of-pocket medical costs of caring for the animal, plus the fair market value of the animal (less the amount you get from mortality insurance). To recover loss of future earnings, strong evidence of past income will need to be shown, together with expert evidence of the future potential of the horse had it lived.

Generally, it’s hard to recover for mental pain and suffering associated with the injury and death of your horse, or for sentimental value.

Veterinary malpractice occurs if a veterinarian fails to come to treat your animal after promising to do so, and the animal dies as a result, or for failure to give continued attention to an animal after an operation, resulting in death or excessive recovery costs.

If a veterinarian violates a statute, such as administering a prohibited drug to a horse in violation of racing rules, resulting in death, the veterinarian is likely to be held negligent just in virtue of violating that law. In addition, a veterinarian who violates laws regarding prohibited drugs is subject to having his or her license to practice veterinary medicine revoked.

But if you suffer a loss of a horse due to a medical casualty, whether or not it’s negligence or due to an injury, the progression of a natural disease, or some sort of accident that the horse gets into – you are entitled to take a casualty loss on your income tax. Casualty losses are shown on your Schedule F or C, and if you are audited by the IRS casualty losses can be used to help explain why you didn’t have profit years. Each loss of a horse sets back one’s business plan because of time lost in breeding and developing each horse.

For particular circumstances, you should consult legal counsel to insure that your situation is such that is appropriate too take advantage of deductions available under the tax laws.

(John Alan Cohan is a lawyer who has served the horse industry since 1981).