Dog bite law - Protecting yourself, your staff your clients and the dog (Proceedings)

As a veterinarian who serves clients owning a dog, there are two issues to be concerned with that involve dog bite law. One issue involves a situation where a dog of one of your clients bites someone, usually not a family member, and the bite causes some physical damage or disfigurement, often with a temporary or permanent loss of employment. Your client is sued by the person who was bitten and is represented by an attorney working on a contingency basis. As a veterinarian who has treated the dog, you may find your records about the dog subpoenaed and you may be deposed with regard to your knowledge about the dog. A complication of a client's dog biting someone is that on rare occasions you may have attempted to treat the aggressive behavior and this client claims you led them to believe their dog was now safe.

Some states have a strict liability law which means that for any dog bite the owner of the dog is liable for medical expenses and loss of income regardless of whether or not the owner was aware of the dog's potential to bite. Other states have what is commonly referred to as the "one-free-bite" law in which a dog owner is not liable until the dog delivers one bite. Theoretically, the dog owner is not responsible until the second bite, assuming the client has been aware that there was a first bite.

The second situation involving veterinarians is if you, or one of your staff, gets bitten by a client's dog. In this situation veterinarians generally fall into the assumed risk exception to the strict liability law. As a small animal veterinarian treating dogs all day long, it is assumed that you are well aware of the risk with any particular dog brought into your facility and that you assume the risk if you, or a member of your staff, is bitten.

Some Background

Believe it or not, a small industry in litigation has developed with attorneys specializing in dog bite litigation and they advertise for cases in which they will represent a plaintiff who was bitten and is pursuing damages from the dog bite. The attorneys that specialize in dog bites generally only take on cases for plaintiffs and do not take on cases for the defense. For the most part, attorneys that represent plaintiffs work on a contingency basis plus, possibly, some hourly fees if the case is not promising enough.

Attorneys defending the owner of the biting dog are usually paid by an insurance company on an hourly basis. It may be useful to keep in mind that the major source of income for attorneys representing plaintiffs is from winning cases with punitive damages for malicious actions on the part of the dog owner, and getting 30-40% of the settlement. Attorneys for the defense get paid regardless of the outcome. Insurance companies are generally trying to minimize the damages that they have to pay. In most dog bite cases there is a settlement; only rarely does a case actually go to trial even though in most cases a trial date will be scheduled.

Client's Dog Bites Another Person

In this situation the plaintiff's attorney is going to look for evidence that the case involves more than the strict liability, or "one-free-bite," guidelines of liability for medical expenses and income loss. They will look for punitive damages that represent "malicious" behavior of the owner who "knew full well how dangerous the dog was," and allowed the dog to severely injure someone. This is where the big payoff is and it goes beyond the limits generally set by strict liability with "ordinary negligence."

In these circumstances the plaintiff's attorney will be looking for any evidence that the client was told by you that their dog was dangerous. Therefore, they may want to subpoena your records looking for evidence that you told the client the dog was aggressive and to look out for this dog around children, take the dog to obedience class, and/or have a consultation with a behavior therapist to deal with the aggressive behavior. The plaintiff's attorney will look for evidence that there was a communication among your staff about how to deal with this dog, such as a note in the record, "Watch out, dog may bite." This would be a flag for the plaintiff's attorney to then ask you about the degree to which you informed the owner of these risks.

If You Are Deposed

If it looks like it is worth the plaintiff's attorney's time, and the case is big enough, they may ask to have you deposed. There are several guidelines that you should be aware of in being deposed and these will be discussed in the lecture. A few things to keep in mind is the necessity of being straightforward and honest with answering the questions regarding what you did or did not tell your client without embellishing the statements in either direction. Do not fidget and do not attempt to persuade the counsel who is deposing you regardless of your position on the case. Just answer the questions as clearly and concisely as possible.

For a deposition prepare beforehand with regard to your hospital's standard procedures, methods of keeping records and the records of the case in question, but do not necessarily spend time reading up on dog aggression and training procedures for the case in question because you may be asked about what you read to prepare for this deposition and will be expected to bring in materials you used for preparation. Most of your comments should be related to items about which there is a written record that needs to be explained or defended. Understand that depositions are generally unpleasant and that they carry the same legal restrictions regarding perjury as appearance at a trial. This does not mean you should volunteer information but basically give information that is asked for in a straightforward, concise manner.

Keep in mind that your client may be present during this deposition. Maintain eye contact with the attorney deposing you and rarely, if at all, look at your client. Recognize that there may even be a legal expert for the opposing side that is someone you know or even a friend or a colleague. As far as the law is concerned, personal relationships, friendships and acquaintances are completely separate from the information delivered in a deposition which is basically a fact finding mission.

Your Liability for a Bite from a Client's Dog

This situation may arise if a client had asked you about the possibility of aggressive behavior in the dog and you gave the client behavioral instructions, and even possibly some medication, that could reduce, or eliminate, the aggressive behavior. If that dog severely bites and disfigures someone, you may be sued on the basis that your client claims that you led the client to believe that the dog was now "perfectly safe around people." You may have dispensed an anti-anxiety medication and said "This may help," but the client interprets it as, "This will cure the problem." If your records say something like you dispensed fluoxetine to eliminate aggressive behavior and does not specify that the owner was told that there is no guarantee that the dog will not bite, you may be partially liable. In cases where you are advising clients on aggressive behavior, it is recommended that you have the client sign a written statement saying that there is no guarantee that the dog will not bite; you are willing to work with them but they have full responsibility for the behavior of their dog

Dog Bites Inflicted on You or Your Staff

Even if you are bitten by a client's dog severely enough that it impairs your ability to work on a short term or long term basis, the assumed liability exception to strict liability, or one-free-bite law, will generally hold. If the client knew full well that the dog had a vicious propensity and was likely to bite a person in your clinic, and did not communicate this to you, you may have a case against the dog owner. For example, if the client had the dog at another veterinary clinic and it had severely bitten a veterinarian and the client then brought it to you without informing you of the dog's history in a similar situation, this may provide for an exception to the assumed liability restriction.

If a member of your staff is severely bitten the employee may attempt to initiate legal action against you, if you failed to inform of the assumed risk aspect of their job. There should be written documents in your practice stating that members of your staff that come in contact with animals are fully aware that they are assuming the risk of injury. Of course, your medical plans and corporate liability insurance should handle this kind of injury on the job, but there probably will be no opportunity to retrieve damages from the dog owner for medical expenses, loss of income or punitive damages.