Court of Appeals
107 S.W.3d 725
May 1, 2003
Plaintiff Smith’s foal died in the
care of defendant veterinarian McGee. A
jury found in favor of plaintiff and the vet appealed. In this opinion, the Court of Appeals holds that this was a
lawsuit based on veterinary malpractice and that the trial judge should have
found in favor of the vet because the plaintiff did not present expert
veterinary medicine testimony as to the standard of care and negligence.
A dissent said this was not a veterinary malpractice case, but one based
on ordinary negligence.
Bill McGee, D.V.M., Jeff Williams,
D.V.M., and Bridgeport Animal Hospital, PLLC, appeal the trial court's judgment
awarding Carl Smith $45,000 in damages plus prejudgment interest for their
negligence in the treatment of Smith's foal. In one issue, appellants contend
that there was no evidence to support the judgment because Smith failed to
present expert testimony regarding negligence and causation. We will reverse and
render a judgment for appellants.
On or about May 21, 2000, Smith's foal
sustained a four‑centimeter cut on its left, rear leg, which left the bone
exposed. Dr. Williams, a licensed veterinarian, treated the wound, prescribed
oral antibiotics, and recommended that the foal be rechecked in three days.
Because Smith was going out of town for the Memorial Day weekend, he left the
foal and a mare in the care of Dr. Williams at the Bridgeport Animal Hospital.
On May 26, 2000, Dr. Williams switched
the foal to a once‑a‑day formulation of the same antibiotic he had
previously prescribed. At approximately 8:00 p.m. on May 29, 2000, a technician
called the veterinarian on call, Dr. McGee, to the clinic because the foal was
exhibiting colic symptoms. Dr. McGee treated the foal with an antacid and an
analgesic for what he believed to be ulcers. The foal seemed to improve;
however, because it exhibited mild muscle cramps, he administered a drug for
sedation. He observed the animal for approximately three hours and then,
convinced the animal was normal, he left the clinic. The next morning, an
employee found the foal dead and the mare visibly upset and sweating.
The day of the foal's death, Dr.
Williams performed a necropsy on it to determine the cause of death. According
to the necropsy report, Dr. Williams determined that the foal had died of
endotoxic shock, a syndrome caused by a reaction to the antibiotic. The
antibiotic killed the good bacteria in the foal's intestinal tract, thereby
allowing the bad bacteria to proliferate. Ultimately, the animal suffered
cardiovascular collapse resulting in a heart attack.
When the mare returned home, Smith
noticed that it had lost a significant amount of weight and showed signs of
shock. In addition, the mare's "udder was dry." Believing that
appellants' failure to properly feed and water the animals had caused the death
of the foal and the deterioration of the mare, Smith filed the underlying suit.
Smith alleged that appellants had committed negligence, fraud, negligent
misrepresentation, breach of contract, and spoliation of evidence. The case was
tried to a jury. After Smith rested, the trial court granted appellants' motion
for directed verdict on the breach of contract and negligent misrepresentation
The trial court submitted the
negligence claim to the jury over appellants' objections, but it refused to
submit a spoliation instruction. After the jury returned a verdict for Smith,
appellants moved for a judgment notwithstanding the verdict. The trial court
denied the motion and rendered a judgment on the verdict.
In one point, appellants contend that
there is no evidence to support the judgment because Smith failed to present
expert testimony that appellants were negligent and that their negligence
proximately caused the foal's death. In determining a
"no‑evidence" issue, we are to consider only the evidence and
inferences that tend to support the finding and disregard all evidence and
inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001);
Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996);
In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Anything more
than a scintilla of evidence is legally sufficient to support the finding.
Cazarez, 937 S.W.2d at 450; Leitch v.
Hornsby, 935 S.W.2d 114, 118 (Tex.1996).
This court has held that veterinarian
negligence cases are to be analyzed under the same standard applied to
physicians and surgeons in medical malpractice cases.
Downing v. Gully, 915 S.W.2d 181, 183 (Tex.App.‑ Fort Worth 1996, writ
denied). In a medical malpractice action, expert testimony is required to prove
negligence unless the form or mode of treatment is a matter of common knowledge,
or the matter is within the experience of a layperson.
Hood v. Phillips, 554 S.W.2d 160, 165‑66 (Tex.1977);
Shook v. Herman, 759 S.W.2d 743, 747 (Tex.App.‑Dallas 1988, writ
denied). Lay witness testimony regarding negligence and proximate cause has no
probative force. Flores v. Ctr. for Spinal
Evaluation & Rehab., 865 S.W.2d 261, 264 (Tex.App.‑Amarillo 1993,
no writ); Westerlund v. Naaman, 833
S.W.2d 725, 729 (Tex.App.‑Houston [1st Dist.] 1992, no writ).
Thus, Smith had the burden to establish
by expert testimony: (1) the applicable standard of care; (2) the facts that
show appellants deviated from that standard, and (3) that the deviation caused
the foal's death. [FN1] See Downing, 915 S.W.2d at 184.
dissent incorrectly characterizes this as an "ordinary negligence"
case. Dissenting Op. at 2. The only issues submitted to the jury were veterinary
negligence issues. Although Smith requested that the jury be charged on ordinary
negligence, his request was denied. Smith does not complain of the charge in
this appeal. Therefore, contrary to the dissent's misunderstanding of the nature
of this case, we must review the sufficiency of the evidence under a veterinary
negligence standard, not an ordinary negligence standard.
In the present case, Smith presented no
expert testimony whatsoever. To prove that the foal died from malnourishment, he
relied on his own testimony and that of his father‑in‑law. Although
both men had been involved in the horse industry for many years, neither was
qualified as an expert in veterinary medicine. The only expert testimony was
that of appellants' expert. Based on a review of the foal's medical records,
appellants' expert testified that the foal was treated appropriately in light of
the clinical signs it was showing. He stated that mildly colicky foals, much
like the one in this case, often respond to analgesic therapy and do not require
further treatment. The fact that the foal's membranes were still pink and that
it continued to nurse after Dr. McGee's treatment indicated to him that the
clinical problem was not extremely severe. After reviewing the necropsy results,
he concurred with Dr. Williams' determination that the likely cause of death was
endotoxic shock. Further, he also stated that the stress of losing the foal
could cause the mare to sweat, lose weight, and to not "let her milk
down." This expert testimony conclusively establishes that appellants were
not negligent. Accordingly, we sustain appellants' point and reverse and render
a take‑nothing judgment for appellants.
ANN DAUPHINOT, Justice.
I must respectfully dissent from the
majority correctly states,
that appellants' failure to properly feed
and water the animals had caused the death of the foal ... Smith filed the
The majority also correctly states,
In a medical
malpractice action, expert testimony is required to prove negligence unless the
form or mode of treatment is a matter of common knowledge, or the matter is
within the experience of a layperson.
The problem, as I see it, is that the
majority has applied the medical malpractice standard of proof to an ordinary
negligence cause of action. The feeding and watering of animals left in your
care is not medical treatment. If the foal had been a human child left with a
relative, failure to feed and provide liquids to the child would not give rise
to a medical malpractice cause of action, even though that relative was a
In a single footnote, the majority
addresses "the dissent's misunderstanding of the nature of this case."
The majority is correct. I do not understand, from the majority's opinion, what
converts this case from an ordinary negligence case based on failure to feed and
water an animal over a hot, three‑day weekend into a veterinary medical
malpractice case. Does the majority claim that feeding and watering are medical
treatment, or does the majority contend that a case becomes a veterinary medical
malpractice case every time a doctor of veterinary medicine is sued?
This court has held that veterinary
malpractice cases are to be analyzed under the standard applied to physicians
and surgeons in medical malpractice cases. We
did not hold, however, that every case involving a veterinarian becomes a
medical malpractice case anymore than every case involving a physician or
surgeon becomes a medical malpractice case under the Texas Medical Liability and
Insurance Improvement Act.
Additionally, this court has expressly
held that veterinarians are neither "physicians"
nor "health care providers." [FN4]
Neasbitt v. Warren, 22 S.W.3d 107, 111‑12 (Tex.App.‑Fort Worth
2000, no pet.) (holding "veterinarians" are not "physicians"
within the plain meaning of Texas Medical Liability and Insurance Improvement
Act, which requires posting of bonds when filing health care liability claims,
and, thus, the Act does not apply to veterinarians).
medicine" means the diagnosis, treatment, or offer to treat a mental or
physical disease or disorder or a physical deformity or injury by any system or
method, or the attempt to effect cures of those conditions, by a person who:
(A) publicly professes to be a physician or surgeon; or
or indirectly charges money or other compensation for those services."
This court has distinguished the
practice of medicine from the practice of veterinary medicine by pointing out:
At the time
the Legislature enacted article 4590i, a different statute, article 8890 of the
Texas Revised Civil Statutes, governed the practice of veterinary medicine.
Section 2(1) of article 8890 defined "veterinarian" as "any
person who is licensed to practice Veterinary Medicine by the Texas State Board
of Veterinary Medical Examiners," and section 2(2)(A) defined the
"practice of Veterinary Medicine" as "the diagnosis, treatment
... or prevention of animal
disease...." Although article 8890 was recently repealed and recodified as
Chapter 801 of the Texas Occupation Code, this definition of a
"veterinarian" remains unchanged.
Just as a cause of action against a
surgeon or physician is not a "health
care liability claim" when the basis for the cause of action is ordinary
negligence rather than a breach of an accepted standard of safety within the
health care industry, a claim of ordinary negligence against a veterinarian or a
veterinary hospital is not a claim of veterinary malpractice.
Because the majority applies the
veterinary malpractice standard of proof and analysis to an ordinary negligence
claim without explaining what caused the metamorphosis of the ordinary
negligence cause of action contained in Appellee's pleadings into a veterinary
medical malpractice case, I must dissent. Nowhere does Appellee plead veterinary
medical malpractice, nor did Appellee offer evidence of veterinary medical
malpractice. Indeed, the only possible evidence of veterinary medical
malpractice was offered by Appellants as a defense. Their position was that the
foal died not as a result of failure to feed and water the animals but as the
result of their medical treatment of the foal.
The majority reverses the jury verdict
in Appellee's favor and renders a take‑ nothing judgment on the basis that
there was no evidence of veterinary medical malpractice. It would be helpful if
the majority would explain why Appellee is required to prove a cause of action
never pled. Because the majority opinion answers none of these questions, I must
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