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Secondly, the fact that the "patients" are animals, and as such are considered personal property, was not considered important enough to warrant discussion. The fact that the veterinarian was highly trained and a member of a regulated profession was treated as a sufficiently important justification to enable the court to ignore the doctrine that was developed to deal with precisely this type of case.

Finally, the court gave no justification for why bailment and veterinary malpractice could not be applied. In fact, when veterinary malpractice principles are applied, the defendant will usually present his own definition of what the standard of care should be and whether he met that standard when presenting his defense. If the veterinarian has a legitimate defense, then the difference will be that the veterinarian will have to present his defense after the plaintiff makes a prima facie showing, rather than after the plaintiff has presented her entire case.

In fact, having the veterinarian present his defense earlier in the proceeding is a very logical way for a court to go about its fact-finding, considering that the veterinarian is the only person that knows exactly what treatment, or lack thereof, was provided to the animal.

It is this logic that inspired the development of bailment principles to begin with--the person caring for the property is in the best position to explain why it was not properly returned to its owner. When malpractice legislation does not explicitly include or exclude veterinarians, courts are left to decide if they should apply the statute of limitations applicable to negligence or to malpractice. This is simply a policy choice left to the courts, and two courts interpreting the statute can easily decide differently.


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In Storozuk v. Butler, [FN] an Ohio Court of Common Pleas ruled that "malpractice" includes negligence by a veterinarian under a statute that reduces the statute of limitations in malpractice actions to one year. However, in Southall v.

Bailee, The Animal Groomer | J. D. Moise

Gabel, the Court of Appeals of Ohio interpreted the very same Ohio statute [FN] and ruled that negligence by a veterinarian was not included in the statute. Thus, even when professional negligence concepts are applied to negligence by veterinarians, there remain inconsistencies in the application of those concepts. If only the similarities in training and types of services provided by veterinarians and physicians are considered, it would seem that the similar theories of liability should be applied.

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If similar theories of liability are applied, then it would also seem that the time limit for bringing that type of action should be the same. However, if the patient-physician relationship is considered, then the veterinarians and physicians seem to have vastly different practices, both legally and practically. Pain and suffering, emotional distress, and loss of companionship are all frequently available either to the human patient or the patient's family, [FN] unlike the animal patient, for whom damages are usually limited to "fair market value.


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This Note has explored the conflicts and inconsistencies with applying malpractice principles rather than bailment principles in lawsuits against veterinarians by pet owners for negligent treatment of their pets. These conflicts and inconsistencies demonstrate that the majority in Price v.

Brown [FN] made an incorrect decision. To hold that veterinary malpractice and bailment are mutually exclusive is simply not necessary. In Price v. Brown, the court primarily relied upon similar educational and licensing requirements, and thus an increased standard of care, in imputing professional negligence principles to veterinary negligence cases.

Bailment principles developed in response to the reality that the bailee was in the best situation to explain the loss or damage to the property. The major difference between veterinary malpractice and bailment is who has the initial burden of production. In veterinary malpractice the plaintiff has the burden, whereas in bailment once the plaintiff-bailor has made a prima facie case the burden shifts to the defendant-bailee to rebut the presumption of negligence. However, even in bailment, the ultimate burden of proof always remains with the plaintiff-bailor. In most cases where malpractice is applied, the veterinarian will still have to mount a defense to demonstrate he was not negligent.

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Similarly, the presumption of negligence that results from the plaintiff making out a prima facie showing of the elements of a bailment is not so great a burden. If the veterinarian satisfies the burden of production and offers an excuse for the loss of or injury to the animal, then the presumption vanishes and the plaintiff must go forward with her case.

Even if the presumption stands and the veterinarian is found to be in breach of the bailment, the damages awarded to the plaintiff-pet-owner could be minimal if the pet's traditional property classification is applied. For this reason, the legal system should not be hesitant to give pet owners a forum for demanding from their veterinarian an explanation of their pet's loss or injury. Plaintiffs should be allowed to state a claim for breach of bailment when their veterinarian negligently treats their pet. But, so long as plaintiffs are limited to the fair market value of their pets, [FN] there will be no incentive to sue and veterinarians will have no financial incentive to avoid negligent treatment.

Currently, some state legislatures have begun to consider methods for expanding the types and amounts of damages for injuries to people's pets. These proposals further highlight the legal system's inconsistent approach to issues regarding animals. Also, many commentators have discussed declassifying animals as property, [FN] but the idea of giving animals legal status in American courts is something that many people are not prepared to accept.

When these issues arise, courts should not treat bailment and veterinary malpractice as mutually exclusive doctrines, and so long as our legal system classifies animals as the property of their owners, courts should apply the doctrine of bailment in cases regarding their injury or loss. The topic of this Note was inspired by discussion in the Animal Law course taught by Bruce Wagman at Hastings during fall Prince for his comments on a later draft. Special thanks to Paul Scott and Linda and Russell Lewis for their enduring support and encouragement.

While the Author recognizes the present movement by some communities to change the title of "owners" to "guardians," the present state of the law makes clear that animals are in fact owned by their owners. See infra note 13 and accompanying text. The differences between professional negligence and ordinary negligence are discussed in Part I.

C, infra. Steven M. See, e.

Veterinary Assocs. Animal Hosp.

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Hamel, S. New England Aquarium, F. Lujan, F.


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Haw holding that a bird does not have standing under the Endangered Species Act "ESA" because a bird is not a "person" within the meaning of the statute. See Cass R. Citizens to End Animal Suffering, F. See Oberschlake, N. Hawksbill Sea Turtle v. Emergency Mgmt. Agency, F. See Mt. Graham Red Squirrel v. Yeutter, F. Hawaii Dept.

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Hodel, F. This court will not impute to Congress or the President the intention to provide standing to a marine mammal without a clear statement in the statute. If Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly.

For a complete discussion of the difficulties that humans and human organizations face when seeking to protect the interests of animals in federal court, see id. William C. Ohio State Veterinary Hosp. The American Veterinary Medical Association recognizes and supports the legal concept of animals as property.