In November 2005, Arlene Sherman purchased a six-week-old apricot-colored toy poodle for $550. Sherman named the dog Ruby. At approximately 5:00 p.m. on May 26, 2006, Sherman brought Ruby to the Broadway Veterinary Hospital (BVH) to stay overnight in order to obtain a urine sample to determine if Ruby still had a urinary tract infection. Sherman signed a "Financial Responsibility Agreement and Authorization for Professional Services," authorizing BVH to perform diagnostic procedures and agreeing to assume all financial responsibility. According to Sherman, the receptionist told her that the urine sample would be collected from a plastic sheet placed beneath the dog's cage.

After reviewing the dog's chart, Jennifer Kissinger, D.M.V. decided to use cystocentesis to obtain a urine sample that evening. Cystocentesis is " 'a procedure in which a needle is placed into the urinary bladder through the abdominal wall of an animal and a sample of urine is removed.' " According to Kissinger " '[c]ystocentesis is essential for a urine culture (the procedure for which Ruby had been brought in for).' " BVH admits that no one told Sherman that a cystocentesis would be performed. When Kissinger inserted the needle into Ruby, she drew blood instead of urine. Kissinger said she immediately removed the needle, applied pressure, and placed Ruby back in her cage. About a minute later, Ruby collapsed. Despite efforts to resuscitate the dog, Ruby died.

Following Ruby's death, BVH performed a number of tests in an attempt to determine the cause of death. In June 2006, Kissinger sent Sherman a letter stating that the DNA test results did not indicate Ruby had a clotting disorder and that the cause of death was unknown. "The lack of blood clots in the abdomen at the time of her necropsy, as well as her propensity to have bruising and hematomas with blood draws are all suspicious for a coagulation defect. . . . We will never actually know if Ruby truly had a rare platelet coagulation defect or not, at this point. I am quite suspicious she did, since the necropsy showed that the cystocentesis procedure did not lacerate any of the major abdominal blood vessels."

Was there malpractice (consider the four elements)? How will plaintiff meet the burden of proof?

See Sherman v. Kissinger, 195 P.3d 539 (Wash. Ct. App. 2008).

CASE STUDY 4D

I took my dog to be spayed on 10/19/04. The surgery was performed and I brought her home on 10/21/04. The doctor used staples and the incision seemed to be fine until Saturday morning. I noticed that three of the staples were out on one side. I called the vet's office and told his technician that the staples were coming out and she asked if they were oozing or leaking. I said no, and she said that if they weren't there was no problem, that this was normal and nothing to worry about. Additionally, I was told to bring her in on 10/30/04 to remove the remaining staples.

I kept an eye on the incision for the rest of the day and it didn't appear that it was any worse. I went to bed around 1:00 am Sunday morning and my dog was in the bedroom with me. She woke me up to go out around 5:10 and I let her back in about 5:15. She was walking fine and appeared to have no problems as she came back inside. However, within about 30 to 45 seconds of returning into the house she let out a howl of pain. I turned on the light and her intestines were outside of her body. We wrapped her in a wet towel and rushed her to a local after hours emergency clinic where they performed surgery and she again appears to be doing fine.

The reason I'm asking your advice is that the doctor states that he is not responsible for her after she leaves his office. He did not request that I bring her in after I notified him of the emergency clinic visit and insists that the only way the stitches could have come out was if she chewed them out. I spent the entire three days after the surgery with her and never saw her pay more than cursory attention to the staples. I feel that the doctor was negligent in allowing his technician to advise a customer with a concern like mine that everything was normal (and the doctor told me he would have told me the same thing if I had spoken to him). In my opinion my dog was under his care until the staples were taken out.

This vet does not acknowledge that any of this situation may have been caused by himself or his office. The cost for the emergency surgery was three times the cost of the initial spaying. Thankfully that option was available to us and we didn't lose her.

I need to know if from a legal standpoint you feel that we may have a case against this doctor.

Thank you.

Questions

Was the above malpractice? Is there anything else that you need to know? How do you decide whether or not to take the case? What will the damages be?