by Samantha Schnobel
Describing a veterinarian’s professional duty, Bernard Rollin dichotomised the role placing at one end a garage mechanic and and at the other, a paediatrician. Simplistic in design, this analogy gives us pause to consider the ethical and legal duties of care stemming from the triangular relationship created between animal, veterinarian, and owner. Within this triangular relationship, deeply meaningful, bi-directional relationships can occur between animal and owner. An integral part of the veterinarian’s role, therefore, is not simply about animal health (though this is certainly a primary concern), it is also about preserving and fostering the animal-owner bond. In a very important way, then, veterinarians are the final arbiters not only of animal health, but also the caring relationship shared between owner and animal. Expanding briefly on caring relationships within the triangular relationship just discussed there will almost always be a relationship of care between owner and animal. In the first place, the owner, by the act of bringing the animal to the veterinarian in the first place, is exhibiting caring behaviour. Beyond this, the animal is almost wholly dependent on its owner for the basics of life (ie. food, water, shelter, etc.) and the fostering of basic capabilities, which animals experience (ie. emotion, imagination, etc.). Also, by virtue of the veterinarian’s aesculapian position, caring relationships can also be said to exist between owner and veterinarian and veterinarian and animal. Having said that, complications can arise where, for example, the veterinarian is engaged in alleviating the suffering of the animal only to obtain payment of fees. The existence of this incongruous model of veterinary care is arguably what led Rollin to describe a veterinarian either in terms of a paediatrician or a mechanic. Unfortunately, as the below will discuss, the law has played a significant role in forwarding a framework which restricts the development of a more care-based model and rather supports an instrumental view of the veterinarian’s role. The position I take throughout this discussion is that the law should seek to promote a construction of the veterinarian’s duty which supports a much stronger, relational approach.
Currently, then, from a legal perspective, the Cartesian example analogised by the garage mechanic is most accurate. Here, the duty of care is owed solely to the owner and the veterinarian is charged with repairing a mere, commodified “thing.” In essence, the law treats the animal patient no differently than a car, or a table, or any other piece of property. No weight is placed on the relationship shared between animal and owner or the animal’s individual sentience. Instead, the focus is placed on the commercial relationship between veterinarian and owner. Thus, if the treatment is negligently completed, monetary damages can be awarded which would allow the claimant-owner to buy a brand new “thing” of equal value. Because many animals lack a sufficiently high market value to make a professional negligence claim viable, very little attention has been paid to the legal duties of care owed by veterinarians . If, however, courts could be persuaded to make the evolutionary step and acknowledge that an accurate characterisation of the legal relationship between owner and animal is not to be found in the base conception of owner and disposable/replaceable property, but rather more accurately as something far more complex and meaningful, veterinarians could face a considerably higher level of professional scrutiny, particularly at the duty of care stage. In light of several recent stories involving potentially criminal and negligent conduct in the execution of veterinary services, discussion of legal duties of care becomes increasingly important .
Current veterinary negligence case law⎯ of which there is admittedly very little in comparison to other analogous professions⎯ disregards an in-depth duty of care assessment, focusing instead on the economic loss sustained by the owner and the breach of duty analysis, which relies heavily on specific factual analyses. The duty aspect is largely forgotten, finding simply that a duty to act reasonably in the given circumstance existed. Such an approach is consistent with an economic theory of negligence which focuses on liability costs, an entrepreneurial economy based on freedom of action, and efficient settlements. What this theory leaves out, however, is the relational aspect both between owner and veterinarian, but also owner and animal, and owner-claimant and judge. According to West and Oliphant, it is adherence to the pursuit of legal certainty and economic efficiency which leads not only to injustice and incoherence, but also a time-frozen, rigid body of jurisprudence, out of touch with prevailing social standards. West’s work in particular focuses strongly on the often-neglected role of feminist and caring theory in tort law and advocates a strongly relational approach not only for judging cases, but importantly in understanding the relationship between all concerned parties. Lastly, by neglecting the duty of care assessment we lose out on discussion related to how a veterinarian ought to act, as opposed to simply how one did act; thus, much of the normative force behind negligence jurisprudence is lost.
To be preferred is an in-depth analysis at the duty of care stage which focuses on the relationship between the owner and the veterinarian. According to Goldberg and Zipursky and McBride, the duty of care analysis is inherently relational with more onerous and affirmative duties (i.e. the duty to protect against emotional harm and the duty to rescue) attributed to those instances where a strong, pre-tort relationship exists . Importantly for veterinarians, this type of analysis more effectively guides human contact, better preserves respect for the law and better integrates law into a variety of professional settings (Goldberg & Zipursky, 1998). Further, adopting the relational perspective for duty causes individuals to focus on particular aspects of others‘ well-being and to develop an ‘internalised normative pull towards certain sets of actions’ (Goldberg & Zipursky, 1998: p.1831). It is this type of discourse which is sorely missing in veterinary negligence case law and literature.
Building from the above, I would argue that similar to human medicine, veterinarians owe many duties of care stemming from positive acts and omissions. More specifically, duties could stem from treatment and diagnosis, disclosure of risk and duties to warn. Where there is a strong pre-tort relationship, there may be duties to rescue and duties to protect against the infliction of emotional harm. When this is combined with concerns with for the animal patient, difficult situations arise for which veterinarians have either very little guidance , or inaccurate guidance.
In order to effect meaningful change in this area and provide veterinarians with a more clear sense of their legal duties, I would argue, following Oliphant and West, that the mechanical application of rules and insistence on institutional consistency⎯ especially those relating to a law and economics perspective⎯ should be rejected. In its place, the judiciary should adopt a duty of care analysis based on the identification of relevant factors derived from a holistic, compassionate assessment of individual cases, paying particular attention to the nature of the relationships between veterinarian, owner, and animal. It is only through this type of high-level analysis based on underlying values and fundamental principles relating to our duties to others that conduct can be shaped and the interests of all parties can be given more meaningful consideration. To what extent the ethic of care could inform development in this area is thus a legitimate and thought-provoking question warranting greater attention.
Samantha Schnobel, Birmingham Law School
Samantha is a doctoral candidate and teaching assistant at the University of Birmingham. Her primary research interests lie in the fields of professional negligence and ethics, specifically in the areas of human and nonhuman medicine. Her doctoral research focuses on the legal and ethical considerations pertaining to the duty of care in human and non-human health-related negligence claims. Additional research interests lie in animal welfare and property theory, in particular sentient property and the interaction between property and personhood found in the work of Margaret Radin
 In a negligence claim, it must be established that the defendant owed the claimant a duty of care. This is in addition to damage (ie. property or personal injury), fault, and causation. Essentially, the duty of care question asks whether the defendant owed the claimant a duty to take reasonable care to avoid or protect her from the type of harm suffered.
 Campbell, E and Boyd, D 2014 Fort Worth Vet Accused of Keeping Dog Alive for Blood Transfusions Star-Telegram, viewed 10 August 2014 <http://www.star-telegram.com/2014/04/29/5776574/fort-worth-vet-accused-of-keeping.html> accessed 10 August 2014. and Taylor, S 2014 Family’s Dog was Put Down by Mistake at Worcester Vets Practice DJB Denny Worcester News, viewed 10 August 2014 <http://www.worcesternews.co.uk/news/11308972.Family_s_dog_was_put_down_by_mistake/>
 This type of relationship could be said to exist where, for example, the veterinarian has served as the animal’s veterinarian for a specific condition for some time prior to the alleged tortious incident.
 Evidence of this can be seen in the high number of practice standards enquiries at the Royal College of Veterinary Surgeons. See: Royal College of Veterinary Surgeons 2013, The Annual Report of the Royal College of Veterinary Surgeons: Part 2 RCVS, viewed 15 August 2014 < http://www.rcvs.org.uk/publications/rcvs-facts-2013/?destination=%2Fpublications%2F>; Royal College of Veterinary Surgeons 2012, The Annual Report of the Royal College of Veterinary Surgeons: Part 2 Royal College of Veterinary Surgeons, viewed 15 August 2014 <http://www.rcvs.org.uk/publications/rcvs-facts-2012/?destination=%2Fpublications%2F%3F%26p%3D2>. See also: Batchelor C.E.M. and McKeegan D.E.F. 2012, ‘Survey of the Frequency and Perceived Stressfulness of Ethical Dilemmas Encountered in UK Veterinary Practice,’ Veterinary Record vol. 170 p.19.
Batchelor C.E.M. and McKeegan D.E.F. 2012, ‘Survey of the Frequency and Perceived Stressfulness of Ethical Dilemmas Encountered in UK Veterinary Practice,’ Veterinary Record vol. 170 p.19.
Engster, D 2005, ‘Rethinking Care Theory: The Practice of Caring and the Obligation to Care’ Hypatia vol. 20 no. 3.
Goldberg, J and Zipursky, B 1998, ‘Moral of MacPherson’ Pennsylvania Law Review vol. 146 p. 1733.
Goldberg, J and Zipursky, B 2001, ‘The Restatement (Third) and the Place of Duty in Negligence Law’ Vanderbilt Law Review vol. 54 no. 3 p. 657.
McBride, N.J, 2004, ‘Duties of Care ⎯ Do they Really Exist?‘Oxford Journal of Legal Studies vol. 24 no. 3 p. 417.
Oliphant, K 2013 ‘Against Certainty in Tort Law’, in S Pitel et al. (eds), Tort Law: Challenging Orthodoxy Hart Publishing, Oxford pp. 1-18.
Rollin, B.E 2006, An Introduction to Veterinary Medical Ethics Blackwell, Ames.
West, R 1997, Caring for Justice, New York University Press, New York.