Andy, thank you very much and good evening, everybody. I'm hoping that as a result of this webinar, you're gonna be able to sleep better at night. This first slide, which I hope is going to come up in the moment, says that you're a fear, a fearful profession.
That's according to the vet record. Lots of you will have seen this leader, just, a couple of weeks ago. If you make a mistake, you'll get struck off, and that's what lots of students on extramural studies think.
The most frightening thing for all of us, I reckon, is not understanding something. The object of this webinar is not to make you lawyers, but try to convince you that the elements of the law which relates to your profession, our profession, are fairly easily described. You're also going to learn that there are very often no definite legal answers.
You're also going to learn, I hope that the law generally is constructed in a way that understands how hard a professional's life is. After all, law is made by professionals and professionals understand how professionals work and the stresses which go along with being a professional person. This slide, one of many busy slides, apologies for that, sets out the registered inquiries of concerns in the period at the top of the slide, which were made to the Royal College of Veterinary Surgeons preliminary investigations Committee.
You will note the number quite a lot that were made, but perhaps more interesting are the breakdown of those cases by the type of thing that the complaint was about. You'll see highlighted in red what generated concern. So, lots of concern about fees.
So this is clients saying things like, I was overcharged, and we're gonna see that lots of disputes about fees give rise to very negligence claims. A number of concerns about communication and consent. Very often in litigation.
The reason why somebody brings a claim is not because they want lots of money. It's not often because they want their pound of flesh, want revenge. It's because they haven't been given an adequate explanation.
They want to know what went on in the operating room. They want to know what was really in the vet's mind when he was doing the the examination. Because the vet hasn't told them.
And you'll see that lots of the cases relate to negligence or inadequate care, and that's going to be the focus of this presentation. Convictions, 27 of those are where somebody's been convicted of a criminal offence, and it's thought that that criminal offence might make them incapable of practising as a member of a principal profession like veterinary surgery. I'm very grateful to Tim Phillips, who is the head of claims at the Veterinary defence Society for the data on this slide.
Of course, the VDS doesn't handle all the veterinary negligence claims in the country or the world, but it handles a very high proportion of them. And in 2018, it got 15,000 notifications of possible claims or complaints, and the type of And complaints by specialty reflected pretty much the way that the profession is organised. So the vast majority of them were small animal claims because the vast majority of practitioners these days are small animal practitioners.
The other claims were divided equally between equine practitioners and farm practitioners. About 900 of those turned into civil claims, 200 into, Royal College, complaints or, criminal investigations. Most of the civil claims were very low value, and we're going to see some of the reasons why that was the case.
On the VDS books at the moment there are about 900 claims. So, that's a year's worth. And that tells you that these claims are dealt with, very, very quickly as a rule.
. Partly that's because the claims are generally of such a low value that they're either settled quickly or abandoned quickly. Of course, there's the possibility of some vast veterinary negligence claims, poultry vaccination claims might run into millions of pounds, but they're very much the exception rather than the rule. What I'm going to deal with this webinar are claims for damages, that's compensation for negligence, claims for breach of confidence.
I'll say a little bit about the disciplinary sanctions which vets can face, if they go before the Royal College of Veterinary Surgeons. But there's some important areas that I'm not going to touch on. You will.
Need to get specific advice about this and indeed about everything else I say from your lawyers or the BVA or the RCVS if it comes to it. So I'm not going to deal with disclosure records, I'm not going to deal with employment law, and I'm not going to deal with criminal law. And my insurers would want me to say that I can't give specific advice, you'll understand about individual cases, and nothing that I say should be regarded as, Constituting legal advice upon which you should rely.
You should always take specific tailored legal advice. So, veterinary negligence. First of all, in order to establish a claim in veterinary negligence, the client has to establish that you owed a duty to them, and the vet generally owes a client duties both in tort and in contract.
You have a contract with every client who comes through your door. Usually, the duty which is owed in contract is the same as the duty which is owed in tort. What's taught a tort is a civil wrong, which arises other than through a breach of contract.
And we owe duties in tort to our neighbours. Who are our neighbours, the neighbours are people who are reasonably foreseeably affected by our act or omissions. So when we're driving in the road, for example, we owe a duty in the law of tort to other road users to drive with reasonable care and skill.
In contracts, there are implied terms, and they're the same sort of terms as are implied by a duty in to. So, there's a duty in contract to use reasonable s care and skill, in what you do. There's a duty in contract to ensure that the things that you sell to clients are reasonably fit for that purpose.
Sometimes you can owe duties to third parties. So if . Somebody other than a client, somebody other than the person who's paying the bill, is injured in the course of a negligently performed examination.
By, for example, a horse which has kicked out because you have, poked it in the wrong place, you may well owe a duty to them too. That, of course, will be a duty in tort. Who should be sued?
Should it be the individual vet or the practise or the company? Well, it depends on whether the sort of failure which is being relied upon is a systemic failure or not. It might also depend on the insurance position.
If the individual vet, contrary to the insistence that the Royal College, isn't insured, and it's a big claim. Then the, employer may be sued direct because the employer will be, insured. I mentioned the case of Blatt and Randall there, in which the court criticised the beaver manual of pre-purchase examination, because it makes the point, does that case, that we don't owe duties to the whole world.
So in the realm of medical negligence, a little while ago, there was a big market in failed sterilisation cases. So, a failed vasectomy. But not, not being tied properly, led to a child being conceived.
And it used to be the case that you could bring a claim for the upkeep of the child. A woman that was, Impregnated by a man who had had a negligently performed vasectomy, and she claimed damages for the upkeep of the child. No, said the court, you can't claim that the original surgeon who did the negligent operation is liable to you, because that would mean effectively that you owe a duty to all the potential sexual partners of that incompetently vasectomized man.
You don't owe a duty to the whole world. The most important case which you all need to know about is a case called Bolem. It goes back to 1957 and it sets out the test for, the standard of duty that you owe and how it's established that that duty has been breached.
So, you're not negligent if what you've done will be endorsed by a responsible body of professional opinion in the relevant specialty. And you can probably tell from the cautious way in that in which that's expressed, that it's quite difficult to establish professional negligence. You can also tell from the way that that's set out that this is a rule not just of substantive law, which says what the law is, but it's also a rule which says how you establish that there has been a breach of duty.
You establish it by hearing expert evidence. In the witness box on behalf of a defendant will go if they're is a trial, an expert who says, I represent a responsible body of professional opinion, and I would have done things in that way, or I know people who I would regard as responsible, who would do things in the way that the defendant did. So that's a reassuring test from a defendant's perspective.
Then came this 1998 case, Blyth in the city in Hackney Health Authority, a House of Lords case, and it caused panic in the medical profession and the veterinary profession and in all the other professions where the Bolem test applies. In cases of diagnosis and treatment, there are cases where, despite a body of professional opinions sanctioning the defendant's conduct, the defendant could properly be held liable for negligence. This is because in some cases it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible.
Well, you can see where that caused worry. It, it looks, looks at. Non-medically, non-veterarily qualified judge whose knowledge of biology probably goes back to a distant memory of a pith frog in primary school should be substituted for the evidence of eminent experts called on behalf of the defendant.
It looked, if you just read that part of the judgement, and this is the part of the judgement that most people did read. It looks as if a judge is entitled to put aside, the expert evidence and make up his own mind. But the House of Lords didn't stop there.
It went on. In the vast majority of cases, the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. I won't read it all out, you can flick through it yourself.
If in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible. It will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. So I, I would hope that you wouldn't seek to defend any conduct of yours that wasn't capable of withstanding logical analysis.
And I hope that, looking at that judgement in a little bit more detail, will allow you to. Conclude that it's really a rare case where the experts, view is set aside. But nonetheless, it is the case that after Bolitho, experts justify their opinions much more explicitly than they did.
They annex the supporting authorities. The reports are littered with footnotes in a way that they weren't. But it's also had the effect, and I'll come to this in a moment.
It's also had the effect that Evidence-based medicine has come much more to the forefront of the courts, because they, because evidence-based medicine is, reckoned to represent what. An opinion that is capable of logical, of withstanding logical analysis amounts to, and that has had the effect of reducing the art of veterinary medicine and emphasising the science of veterinary medicine. And not everybody likes that.
Lots of people would want to say, look, there's a room for intuition. And sometimes the exercise of mere intuition, reliable though it is, perhaps more reliable, than, clinical guidelines, might be difficult for someone to defend in, a systematic way. So, generalists and specialists.
You are judged by the standard that you hold yourself out as having. If you hold yourself out as being a veterinary general practitioner, you are judged by the standards of a veterinary general practitioner. If you say, I am the world's expert on the surgery of the equine stifle, you will be judged by the standards of a world expert in the surgery of the equine stifle.
If you're a general veterinary practitioner, who undertakes a procedure which One would expect to be just the province of, an eminent expert in a tertiary, referral facility, then you're going to be judged by the standard of that. Expert. So you're judged by the standard that you hold yourself out as having.
It's emphasised by the Royal College that you have an obligation to keep up to date. That's an obligation to keep up to date in the specialties in which you purport to practise. What about an obligation to refer?
This is really problematic in veterinary medicine, isn't it? Because very often a specialist is going to be able to provide more expert care than a general practitioner. So the obligation here, I think, is to have a full and frank discussion about the possibility of referral, and that is going to include not just clinical matters, but costs and logistics and so on.
Evidence-based medicine and clinical guidelines. There is an increased tendency to systematise medicine and veterinary medicine, and to say that the only way of doing something is in accordance with the clinical guideline which embodies the findings of, the, the various clinical trials. It is certainly easier to defend if, there is compliance with the clinical guideline, but the mantra that you hear all the time in, human, medical litigation is guidelines are just guidelines.
As we'll come to in a few minutes when we talk about the Royal Colleges. Recent statement about complementary medicine. many of the big clinical guidelines, compiled according to the canons of, scientific orthodoxy, are themselves subject to, serious criticism.
And Recently, the shift in, human, litigation, medical litigation, has been towards, more rigorous interrogation of the validity of clinical guidelines. Interrogation of the processes by which they have been compiled. Interrogation sometimes of the statistical basis, which has led to the the studies upon which those clinical guidelines are based, all of which is to say, compliance with the guideline helps, and non-compliance with the guideline isn't necessarily fatal.
So far as alternative and complementary therapies are concerned, A case about that is a 2001 case called Shakur, . Chinese herbalist, prescribed Chinese herbs, and the patient got a very unusual allergic reaction and died. Well, it was decided in that case that the Chinese herbalist couldn't possibly have been expected to anticipate that very idiosyncratic death.
The standard of care was what a reasonable herbalist would do. So the Bowman test applies to alternative and complementary therapies as well. There's an obligation on practitioners in those areas to keep abreast of what An orthodox practitioner, would know, insofar as it was pertinent to their own practise.
So, they would be required, for instance, to know how to deal with, an allergic reaction. But Bole applies. You look at these cases through the lens of an expert in alternative and complementary medicine.
Informed consent type cases, these are tremendously important in human medicine, as you can imagine. What classically happens is that The patient says, oh, I wasn't warned about the risks associated with a particular procedure. And had I been properly warned, I would not have signed the consent form.
I therefore wouldn't have had the procedure. I therefore wouldn't have been damaged by it. These claims in human medicine are really about, human autonomy, which is such a central value.
They're about making informed choices and being able to, Run your life in the way that you want to run it. Obviously that's not so relevant in veterinary medicine, but there is a duty, which I think should be defined by reference to the Bolem test to explain the clinical options, explain the costs, explain the prognosis, etc. So as to allow an informed decision to be made.
So failure to lay out the options, failure to explain properly, would amount to negligence. How do you decide what amounts to, an improper, failure to I explained the options and so on. Answer by going back to the Bolem test.
So you, you are required to do by way of explanation, what a reasonable practitioner would expect you to do, by way of explanation. And if the client would have made a different choice, had they been given a proper explanation that you didn't give, you might be liable for the consequences of the choice that they actually made in reliance on your, bad, or absent advice. So here's the case, which was litigated, it was actually a case of mine.
I acted ultimately unsuccessfully for the claimant. But it shows you how, the Bolem test works in relation to clinical practise. So, a bear, a bear aborted and, a while later she got laminitis.
The evidence was that was caused by a retained placenta. And the issue was, was the vet who examined the horse in the first place, negligent in not conducting a uterine examination, and in particular in not administering prophylactic antibiotics. What the vet said, look, I, I looked carefully at the placenta, It didn't seem to me that there were any bits missing.
I examined the mayor, and I decided, exercising my clinical judgement, that there was no need for antibiotics here. The claimants expert says, look, unless you're 100% certain that the whole of it has gone, and it's quite difficult to be 100% certain, particularly if the placenta's lying out in the field and be pulled about by foxes and so on, and you need to err on the safe side and give antibiotics. That's mandatory.
Well, It's not so simple, said the defendant's expert, and the defendant. And that view of the defendant, which was rejected by the judge at first instance, was accepted by the Court of Appeal. And this is what they said.
It's impossible on the evidence to condemn the body of professional opinion represented by the defendant's side as illogical. Remember, not capable of withstanding logical analysis was the way it was put in that case of Belitha. Of course, there are differences between the experts.
The claimant's expert clearly treats animals more defensively than the defendant and the defendant's expert, but both opinions seem to be capable of logical support. In that situation, there's no room for a finding of negligence. So that's an example of the law realising that and this is probably an insensitive way of putting it in the context of veteran negativeness, there are many ways of skinning a cat.
If there is a duty, and the duty has been breached, that's not the end of the matter. The claimant still has to prove on the balance of probabilities and that the breach of duty which has been established, has caused some sort of loss recognised by the law. So the basic test is the but-for test.
The The claimant has to establish that but for the defendant's negligence, they would have avoided the damage which is claimed. This is illustrated by, the case of, a little lad who climbed up a tree and then fell out of it, and he fractured his, femur. And he was negligently treated, and he went on to develop avascular necrosis of his femoral head.
The expert evidence, let's say, for the purposes of argument, was that if he had been negligently treated, if he hadn't been negligently treated, he would have had. A 49% chance of avoiding the vagathrosis. That meant, of course, that on the balance of probabilities, he would have got it in any event.
So the but-for test wasn't satisfied. But he said, look, I've lost something real here, haven't I? I've lost, a 49% chance of, avoiding.
A vessel necrosis in my frontal head, surely that's worth something. Surely it's worth, in fact, 49% of my damages. No, said the Court of Appeal.
That's not, no, said the House of Lords actually. That's not how we judge these sorts of cases. Unless you prove causation of the balance of probabilities, you get nothing.
There are some exceptions to that which we needn't deal with. No. Not all sorts of sorts of loss are compensated by the law.
Another case of mine, involved a man who had had a corneal graft. Corneil Graf restored his sight. And as he was lying there recuperating on the hospital bed, The surgeon came to him and said, the good news is that your site has been restored.
The bad news is that we've just heard from the Cornell Bank that the donor of this cornea, many, many years ago had syphilis. But don't worry, there's no record anywhere in the literature of syphilis being. Transmitted by a corneal graft, but just in case, we'll give you huge doses of antibiotics, so that if there are any syphilis organisms there, they'll be wiped out.
So, he was given the antibiotics, he didn't get syphilis. He wasn't ever going to get syphilis. He was just worried that he might get syphilis.
And they weren't able to find a psychiatrist who could characterise that worry as a psychiatric illness. That case was struck out because he, although he had mere worry, he didn't have any damage of the sort recognised by the law. Another case, a lift was negligently stuck between floors, as a result of which the people who were trapped in it got a little bit overheated and flustered and panicky and upset.
They sued the people responsible for the lift. Conclusion in that case, look, they might have been a bit upset, but being merely upset isn't lost recognised by the law. And in veterinary negligence cases, some of the loss which you see claimed will be mere upset about the way that an animal has been treated or the way that you've spoken to them perhaps.
That's not law which is recognised. That's not loss, which is recognised by the law of negligence. So what can claimants in veterans cases claim for?
Well, the law of tort is an evolving organism, it's changing all the time. And as new situations arise, so the law might evolve to meet them. It's worth remembering what the purpose of tort is.
The purpose of tort is to put someone in the position in which they would have been had the negligence not occurred. Contract is different. The purpose of compensation in the law of contract is to Put claimants into the position which they would have been had the contract been performed.
In veterinary claims, those two are almost always the same. Mitigation of loss, what that means is that if someone suffers some sort of damage, they've got to take reasonable steps to reduce the amount of loss which flows from it. So for example, if you have.
A road traffic accident. And you claim. That you couldn't get to work for weeks and weeks and weeks until your car was repaired and therefore suffered huge loss of earnings.
You may well fall foul of the law about mitigation because the defendant will say, oh look, you could have gone to work on the train, or you could have hired a car and mitigated your losses, and therefore your claim for loss of earnings will be reduced by the extent to which you could reasonably have mitigated it. Accelerated receipts. What I mean by that is that lots of the loss which is claimed in negligence in other cases, will be loss which relates to a distant time in the future.
Where that happens, since it will be compensated for by loss, by loss calculated at the time of trial, you've got to give credit for the money which the amount of damages should be regarded as earning. It's actually a negative amount these days, because the financial markets are in such a dire state. Often, clients claim for the wasted costs of treatment and other care.
They'll say, often as a counterclaim to your claim against them for unpaid fees, . Look, I, you gave me this treatment and it was hopeless. I'm not paying that.
Furthermore, as a result of your negligence, I had to go on and get other treatment, which, is very expensive and you should pick up the bill for. Often you see claims for loss of the value of commercial animals. And you need to remember that credit has to be given for the costs of not maintaining the lost animals.
So if you're claiming for the lost. Profits, from a dairy herd, for example, because, all the dairy cows have died as a result of your negligence, that claim should be reduced by the amount of money that you have. Saved by not having to feed them, not having to pay heating bills, not having to call the vet in during the time that all your animals were dead before you replaced them.
Sometimes, and this is an exception to the rule in that Hodson case, which I mentioned a few minutes ago. There'll be a claim for loss of earnings generated by animal or an animal or or animals, herd or flock cases. In the case of a racehorse, that might well be, a good basis for a loss of chance case.
In solicitor's negligence cases, which involve litigation, if a solicitor fouls up your chance of succeeding at trial, you will be given damages against the solicitor. Which represents the value of the claim at trial, multiplied by the chance that you would have won at trial, and it would be similar in relation to, for example, the earnings which might have been won by a race, a racehorse, which you have negligently caused not to be on the racecourse. Usually, claims that that can be, intelligently quantified on the basis of the animal's past performance.
But what about companion animals and, the vast majority of, litigation? Should you regard animals as like holidays? So, what I mean by that is that there are lots of cases about People whose holidays have been negligently spoiled, and they claim, look, this was, this holiday was supposed to give me a a real benefit.
It was supposed to make me feel relaxed, it's supposed to give me great enjoyment. I want the loss cost of the enjoyment. Loss of companion animal cases make similar suggestions.
They say, Having a cat is an enjoyable experience. You've killed my cat, therefore, you're entitled, you're obliged to. Compensate me for the loss of enjoyment.
Sometimes quantification is straightforward. So if you mainly keep a horse because of the pleasure of riding it out in the countryside, You can claim for the cost of a replacement pony to ride out in the countryside. Perhaps there should be an uplift because you have been deprived by the veterinary negligence of this specific, intense pleasure of riding your particular beloved pony out in the countryside.
And should you be required to buy a replacement animal in order to mitigate your loss, very often, yes. What if negligence means that an animal is more expensive to maintain? Perhaps you have negligently, put it in such a way that it needs to have, an expensive renal diet, for example.
Is there, under those circumstances, an obligation to kill the animal, so that you can buy, one which has ordinary kidneys, which don't need the cheaper diet, no judge will be so callous as to order that. To skip over that and. Go to product liability claims very briefly.
In the olden days, vets often made their own medicines or vaccines if that still happens, and it still does happen in a few cases. You might be liable as a producer of defective products. It's a limitation period for bringing claims.
In contract, it's 6 years from the date of the breach of the contract. In tort, it's 6 years from when the damage was first suffered. And of course, that might be later than the the date in contract.
If personal injury has happened, and this is personal injury to a person, not a personal injury to an animal. Animals in law are property. It's 3 years from when that cause of action accrued, came to be, or from when the person had the date of knowledge of their injury or the attributability of their injury to the negligence.
Now, I'm very conscious that I've said lots of complex things, and I, I thought it might be helpful to try to focus, our thoughts on, what I've said by reference to a rather trite few, quiz questions. So, here's the first one. A bitch bay 13 years ago, the vet leaves a swab in the abdomen.
Which of these is true? A, does the client have a nailed on claim for veterinary negligence with minimal damages? B, nailed on claim, but enormous damages.
C. This is a hopeless claim, if it's competently defended. So, very quickly, A, B, or C, what do you think?
OK, so the polls launch that that you can just please please answer as you see fit fit. OK, I think we've just about done that. So, the just a slight majority have gone for the first answer A, closely followed by C where 43% is 50% for a 435 and just 3% 3% for B.
Very good. Right. Well, the obvious, the, the thing to say about this is that, as in most cases of Law, philosophy, and ethics, it depends.
Whether it's negligent to leave a swab in the abdomen is technically a matter of expert evidence, but it will be, of course, incredibly difficult to find an expert who would say that there is a responsible body of veterinary experts who would leave swabs in the abdomen. The Limitation period, of course, is 6 years, but when did it accrue, to use that word that I've just used? This was a bitch Bay 13 years ago.
It may be that this swab has been lying there doing absolutely no damage whatsoever. For the last 13 years. It may have been that the swab killed the dog 6 months after the operation 13 years ago.
If it killed the dog 13, 6 months after the operation 13 years ago, this is a claim which is time barred, well out of date, and if competently defended, would not go any further. It may be that this is a claim which is absolutely enormous. So perhaps that swab left in the abdomen produced the need for lots of follow-up surgery, which was justifiably done in a very expensive facility.
Perhaps it produced the need for a lifetime dialysis in some enormously expensive veterinary hospital. So, we don't know is the answer to all of those. What about this negligent advice about mastitis control in a dairy herd.
Before the vet's involvement, the farm's annual profits were $100,000 a year. After it, they were $50,000. 5 years later, they've recovered.
What I say are the damages. Are they First of all, 50,000 times 5 years, say $250,000 be impossible to say, C or see nothing. So, OK, the.
So I think it's fairly clear, the vast majority of people are saying it's impossible to say. There's a few saying the first answer A and just a couple saying nothing at all. OK, thank you.
Well, the The the first comment about this is that the profits are in dollars. So this is probably not an English claim. And therefore, there's probably no possibility of this client suing for these damages in English court.
So probably it's worth nothing at all in England. If it is, for some reason, tribal in an English court, it's unlikely to be 50,000 times 5 years because, they would, as I said, a little while ago, have to be an adjustment for the, the value of And the, the, the sum, if it were invested. But The real answer is that it's if it's tribal in England at all, impossible to say what the damages are.
What we've no idea about, about causation here. We've no idea that that reduction in the profits was anything to do with the mastitis. Yes, we've got a breach of duty, but we've got a lot more work to do to establish that that breach of duty resulted in any loss at all in this case.
What about this cat spay negligent failure to realise the cat had stopped breathing. The cat died and the vet rang up the owner and Explained, laughing about it. Look, it's a black plastic bag job, I'm afraid.
Never mind, plenty more where she came from. We can arrange a nice casket for the ashes. It'll only cost you 100 quid, let the receptionist know if you're interested.
So the owner was devastated, was plunged into deep depression, and brings a claim for that depression and the financial consequences of that depression. So is the claim here a doomed to failure? B, a good claim if they only gets a decent barrister or C, want to pay up on immediately.
OK, we'll just leave the pole up for a few more seconds. This one seems to have split the audience more, . Just over 50% are going for B.
Good if the owner gets a good barrister, then 28% doomed to failure, 19% want to pay up immediately. Right. Well, This is a claim for what the lawyers call nervous shock.
And basically, the, the law is that, if you are a primary victim, that is somebody who foreseeably might suffer personal injury yourself. You can get damages for psychiatric injury, which is what, what's being claimed here. But if you're a secondary victim, that's somebody who wouldn't foreseeably have suffered physical injury, you could only get damages for psychiatric injury.
And if you either saw the shocking incident or were told of the immediate aftermath of it. And you had a, a relationship of love and affection with the, person or thing that was injured. And People of reasonable firmness would be affected in that way.
Well, it's not clear that you can have a relationship of love and affection with an animal, which after all in the eyes of the law is a piece of property. This is plainly a secondary victim here, the owner, even if what was said could amount to, the immediate aftermath. So, I would be pessimistic about, this claim on the part of, a claimant.
It may nevertheless, be possible for them to say, look, whatever the circumstances of the death of the cat, it was grossly negligent for you to tell me about it in that way. And the fact that you chose that deeply unprofessional way to tell me. Itself foreseeably, caused me to, suffer depression.
Now, the law about that is, very complicated and uncertain, and I don't know what the outcome would be. What I am clear about is that this was a deeply unprofessional way of dealing with, this cat's death. The RCVS would, be no doubt very, very interested in this.
And the reputational damage of litigating, associated with litigating something like this would be so devastating, that, it might well be one to settle, whatever the legal merits of the claim. Final one on veterinary negligence, cat's Bay. Left ureter ligated.
In fact, the cat had no right kidney. And since the left Eura, ligation took out its left kidney. The cat died.
So the owner brings a claim for 5 years of income that it said would have been generated by this very valuable show animal, the replacement value of the cat, the loss of the immunity value of the cat. Funeral expenses and says, look, if you don't admit liability, and pay up, I'll go to the papers. The solicitor says, just pay up.
What do you think of the advice of the solicitor? Should you get a new solicitor? A yes, B no, or C.
It depends. What about that? We'll just leave the pole up a little longer.
OK, so it's just slightly in favour of a, yes, get rid of the solicitor closely followed by it depends, 41% compared with 50% and just 9% are saying no, stick with your solicitor. Right. Well, it's not necessarily negligent what has happened here.
Perhaps there was some sort of anatomical anomaly which made they left Eta. Invisible. Maybe it was in a very unusual place.
Maybe it was in a place such that a vet acting with reasonable skill and care might still have ligated it. So it's not clear that there was a breach of duty. If there was, though, would the cat really have earned for five years?
Maybe had some. Concurrent illness, which would have meant that it wouldn't have earned anything at all as, a show animal. Well, what about the amenity value?
Are show animals, what is this very expensive show animal really something which is so loved by its owner that the owner will be, devastated by it's absence. Some Owners of commercially significant cats are not as sentimentally attached to them as the owners of much less commercially significant animals. Replacement value of the cat, well, in principle, you'd have thought that would be, since it's a show animal, a good thing to do in order to mitigate the loss for.
For, for no other reason. You could have, should of course discount the show earnings that this replacement animal, are going to make. What about the funeral expenses?
Well, you could claim a reasonable cost of a casket, arguably, although, of course. The cat would in any event have died eventually, and so you'd have to, Just pay the funeral expenses that the Discounted by the amount of time that the animal would have been saved for. If it's a very elaborate funeral with police outriders on the, funeral cortege, then of course, no reasonable cat owner, will be expected to pay that and therefore, the defendant shouldn't be expected to pay it either.
But again, if this is. A fairly small claim, and the reputational damage, might be significant and regardless of the merits of the claim, it might be worth paying up. Another matter completely, breach of confidence.
So a breach of confidence is where information's disclosed, where it shouldn't have been. Lots of information which you get given in the course of your consultations will be information which has been disclosed in circumstances of confidence to you. There'll be an express sometimes, but more usually an implied understanding that it won't go any further.
And The rule is basically this, that there will be an actionable breach of confidence. That is something that gives rise to a claim for damages. And if the public interest in disclosing the confidential information outweighs the public interest in non disclosing, not disclosing that information.
Of course, if the evidence, if the information is already in the public domain, that means that they can't be a claim. And the best way to illustrate this is by another little quiz. So, you're standing in your reception area at the practise, and while in that busy area, a client tells you that a German shepherd has bitten several local kids.
Clar says, look, I'm gonna ignore your advice about putting the dog down or muzzling the dog. You're really worried. You phone the police, you telephone the papers as well.
. That drops through the door a few days, a few days later, a solicitor's letter saying the client is intending to issue proceedings for damages for breach of confidence. Should you be worried sick, be cautiously optimistic success or confident of success and really looking forward to your day in court. So what about this?
OK, so I think most people have answered. We have 63% going for cautiously optimistic and then it's split 19% each for being worried sick or confident of success and confident of that day in court. Good, thank you.
I think that in this case, there is case for saying that there is A significant public interest in the disclosure of this confidential information, if it is confidential, which I'll come back to, and that that public interest. Outweighs the, public interest in not disclosing. The public interest in not disclosing it is the public interest associated with keeping professional confidences.
But is this really confidential information? After all, the client has sounded off about it in the reception area in the practise. If she's really so worried about keeping the, the confidence, would she have broadcast it so widely?
Maybe it's information which is already in the public domain anyway. If there is, if it is, then a claim for breach of confidence doesn't get off the ground. Very briefly, the Royal College's disciplinary process.
The claims of damages that we've been talking about, are just about money. We've discussed that sometimes they can affect your reputation as well, but basically they're all about money and they're going to be paid by your insurers. The costs are gonna, the costs of fighting them are going to be paid, and the damages are going to be paid by your insurers.
But the Royal College disciplinary process has the potential to, take you off the register completely. And therefore really much more of a cause for concern. But how realistic is that concern?
There's very, Careful triaging process before anything gets anywhere near. The disciplinary committee. Before it concerns registered, a written or telephone inquiries made, case manager considers whether a formal concern should be raised.
There's a mediation service, which takes a number of these claims out of the the disciplinary stream. So many cases never get beyond that first consultation. There's a second level of triage, if it does get beyond that stage, and that's the consideration by the preliminary investigation committee.
And we saw right at the beginning, this slide, which illustrates the fate of, Well, it's the type of work which comes before the, professional investigation, the preliminary investigations Committee. And here is what happens to The cases which came before that preliminary investigation committee. In the 7 meetings.
February to May of 2018. I'm not gonna read it out. You can see that, Half of the new cases that were considered were conclusion.
Went on for further investigation. The collection of, further, evidence. There's a, a Royal College health and performance, stream.
So if a veterinary surgeon has health concerns, it might be depression, it might be addiction of various sorts, or whatever it is, which are affecting their ability to work. They're taken out or can be taken out of the disciplinary process and dealt with separately. Similarly, if someone's performance is affected in a way which doesn't raise any matters effectively of probity.
Again, they can be taken away from the, the disciplinary stream. There were 23 meetings of the disciplinary committee in 2018. And this is what that committee considers.
Conduct disgraceful in a professional respect, conduct which falls far short of that which is expected of a member of the profession. If that's found, then yes, there is the draconian sanction of Eurasia, striking off. But the chances of that happening are really pretty remote.
2018 was described as a record year for these hearings, but there were only 23 cases heard by that committee. Less than half of those cases resulted in Eurasia. Put that into the context of nearly 24,500 practising vets in March of 2018.
I raised this finally, not to express an opinion about it, but just to indicate that there's an issue about it. The code of professional conduct. Says that, animal health and welfare has to be your first consideration when attending to animals.
Look at the red highlighted. Section on that slide. Whatever the circumstances, the overriding priority is to ensure that animal health and welfare, are not compromised.
But I, I, I, I wonder whether If that is really the way that the Royal College sees things, whether one can be an ethical vet. Isn't there very often. In fact, usually, in, commercial animal practise, a conflict between, animal welfare.
And what you as a veterinary surgeon are asked by the human client to do. Suppose a drug increases production of beef cattle. You're being asked to prescribe it, but it compromises their welfare.
And the only way in which you could say that, giving it. Is in compliance with your ethical obligation is to say, look, unless Beef was produced using this sort of system, these animals wouldn't exist at all. And I assess as a vet.
The These animals have more pleasure than pain in their lives and therefore, it's better that they exist, which they wouldn't do without the the drug without the system which involves this drug. That seems a very airily philosophical way of, of justifying your existence. BVA survey, 98% of some small animal vets have been asked to euthanize healthy animals.
Now, what one might say that they're being asked to do that. And, and do it if they do it. Out of welfare considerations because the animals kept by owners who ask you to do something like that are going to lead such wretched lives if they're not euthanas, that they're better off dead.
But again, that seems to me to be often a questionable assertion to make. So I raised those things only to suggest that The welfare consideration is something that isn't always easy to square with what you do every day in your duty as veterinary surgeons. It's not something which is likely to lead you into trouble with the RCVS who, whose own codes of professional conduct embody this tension.
But, it's something which, people are increasingly, speculating about. So I'm gonna shut up there and, invite any questions that what he has. OK, well, thank you very much for that, Charles, a very thorough and thought provoking, presentation.
If anybody has any questions, you can either use the Q&A facility or the chat, and I'll, I'll pick up any of those. I've got one just to start you off, and it's quite a specific case, . But this actually happened to me, not, you know, when I was, when I was a practising vet.
So I had an owner came in with a lame dog and, it was a nice sunny day. Ask them to take it outside, trot it up so I could have a look at it. When we got back into the surgery, the owner had become quite breathless and then revealed to me that he'd actually got a heart condition.
He then couldn't hold the dog, and unfortunately, nobody else was available to hold it. So I did my best. He then refused to pay because I hadn't done a proper examination.
A, where would I have stood on the liability had he had suffered a heart condition, and B, would I have been reasonable going after the money? Well, In answering any of these questions, I need to repeat what I, what I said at the beginning, which is that I can't give specific legal advice. But, just speaking generally about this, it doesn't sound as if there was any reason for you to suspect that the owner was liable to have anything go wrong with him if he trotted the dog up.
And therefore, it seems to me to be very unlikely that you were, negligent in asking him to do that in the first place. If the question is, Whether you were negligent in failing effectively to, to deal with his own heart condition once it had developed after the trot up, then, again, it doesn't sound to me as if you have been in any way negligent, . But that will be judged by the The standard which would be expected of an expert veterinary surgeon in relation to to the recognition of human heart disease, and, and its treatment, and I, I can't begin to think that you would have been expected to do anything else other than that that you did do.
Was it reasonable for you to, press him for the, the money? On technically, I think it absolutely was. I can see how from a practised profile point of view might, you might, that might have been one that you wanted to, to let go if the amount of money wasn't, wasn't great, but yeah, there was, there was nothing wrong with you for saying, look, I was entirely right in this place.
I, in this case, I was just asking you to. I was just doing the job that you asked me to do, please pay up. So you, I think you come out of this very well, Andy.
OK, well, thank you very much for that for reassuring me. At the moment, we don't actually have any further questions. You've obviously done a very thorough job of, of putting people's mind at rest, I hope.
So, unless anything comes in, Oh, somebody's raised a hand. I've never had that before, so I don't know what that means. Erica, do you want to post a question?
On the Q&A or chat, Erica. Here we go from Erica. If a bandage may have been put on too tightly, which results in a limb being amputated, am I liable for further costs?
The first question is, was a duty owed to the client? And of course, the answer to that is yes. The second question is, was there a breach of that duty?
And the answer to that is, Not necessarily. You can't conclude necessarily from the fact that, the limb was ultimately amputated, that the the bandage was put on too tight. I suspect it, it was, but that would ultimately be, a matter for expert evidence.
So it would be possible to imagine circumstances, in which, the thing which caused the swelling and the, The, the bandage being too tight and constricting the circulation dangerously, arose, unforeseeably in a way that should not have been seen at the time the bandage was put on in the way that it was. So it's not necessarily clear that there was a breach of duty here, but, assuming that there was a breach of duty and that that breach of duty caused the ultimate amputation, and then there are a number of heads of claim which might result from it, including the cost of the amputation, the cost of the rehabilitation, the cost of any subsequent treatment. So, yes, but potentially a big claim if, primary liability is indeed made out.
OK, thank you very much for that. We'll just give everybody maybe 10 more seconds, and whilst I'm waiting, just in case, again, thank you very much, Charles, very thorough. As I said, very thought provoking, very interesting presentation, and, hopefully, people will sleep better in their beds tonight.
So no more questions. Thanks again, Charles.
