University of Vermont AAHS

Moses v. Richardson

California Court of Appeals
UNPUBLISHED, 2001 WL 1513764
November 29, 2001

Summary of Opinion

Plaintiff Moses took her horse to defendant veterinarian Richardson’s clinic for treatment of roaring. The horse was placed on a treadmill as part of the diagnostic process, but was seriously injured when the treadmill procedure was terminated. The horse subsequently was euthanized.

A jury awarded damages to plaintiff on the ground of negligent operation of the treadmill. On appeal, the veterinarian argues that the verdict must be set aside because plaintiff did not present expert veterinary testimony about the standard of care. In this opinion, the Court of Appeals rejects that argument on the ground that the claim here was negligent operation of the treadmill, which was used for veterinary and non-veterinary purposes, and was not therefore a claim of veterinary malpractice. It affirms the jury verdict.

Text of Opinion

Defendants G. Lynn Richardson, D.V.M., and the Helen Woodward Animal Center (together Dr. Richardson) appeal a judgment in favor of plaintiffs Darian Moses and Derinda Moses (together Moses), entered after the jury determined the negligence of Richardson and/or his registered veterinary technician caused the death of Moses's horse. Richardson contends the court erred by denying his motion for nonsuit on the ground Moses did not present expert testimony on the standards of care applicable to veterinarians and veterinary technicians. Because the alleged negligence arose from the handling of the horse on a treadmill, nonmedical equipment, we conclude this is not a professional malpractice action requiring expert medical testimony. Accordingly, we affirm the judgment.


Moses owned a show horse named JJ Testarossa (Rossa). Rossa occasionally made a "a loud breathing noise," referred to as "roaring." Rossa's trainer, Bridgette White, took her to Dr. Richardson to see if he could "make her more comfortable in her breathing." Dr. Richardson performed throat surgery on Rossa, but the roaring continued.

White returned Rossa to Dr. Richardson, and he decided to perform an endoscopy examination of her upper airway while she was exercising on a treadmill. After a tube was threaded through Rossa's nose into the airway, she was placed on the treadmill. Dr. Richardson and White stood at the front and side of Rossa's head, respectively, and his registered veterinary technician, Cathy Sauter, stood at the rear of the treadmill to control its speed and keep the horse moving forward by lightly tapping her rear with a whip, a procedure referred to as "tapping up." After about 10 to 15 minutes of exercise, Dr. Richardson said to Sauter, " 'Okay. That's good. I have seen what I need to see. You can turn it off.' " [FN1]

FN1. This information comes from White's testimony. Dr. Richardson, however, testified he could not perform the endoscopy because Rossa was not sufficiently trained on the treadmill before the accident. The factual dispute does not affect our holding.

Sauter slowed the treadmill and tapped up Rossa as she started to drift toward the back of the machine. When Rossa began drifting back a second time, Sauter did not continue the tapping up; rather, she hit an emergency stop button on the treadmill. As a result, Rossa's back hoofs were caught between the moving belt and a metal plate on the end of the treadmill. Rossa's legs were seriously injured and she had to be euthanized.

Moses sued Dr. Richardson for negligence. At trial, Moses's theory was that Sauter was negligent in discontinuing the tapping up as the treadmill slowed, Dr. Richardson was responsible for her conduct under agency principles, and he was independently negligent for not using a safety harness as called for in the user's manual and not having more persons present to assist with the treadmill procedure.

Sauter testified that the treadmill is used for both exercising horses and veterinary procedures, and its operation is the same regardless of the use. Sauter herself used a treadmill to exercise horses boarded at the Helen Woodward Animal Center. She explained she hit the emergency stop button instead of continuing the tapping up when Rossa drifted back the second time because she thought the horse was too tired to respond.

Dr. Richardson testified he did not use a safety harness during treadmill procedures because a recognized veterinarian expert cautioned against doing so. The defense expert, Dr. Barry Grant, testified that neither Dr. Richardson nor Sauter breached the applicable standard of care.

Over Dr. Richardson's objection, Moses relied on Jill McEwan, a professional horse trainer, as an expert witness. She had handled horses on treadmills for about seven years, but not in a veterinary clinic or in the context of a veterinary procedure. She testified it was improper for Sauter to discontinue tapping up Rossa because "[y]ou always want to keep the horse going forward until the treadmill has stopped," or it may get injured. McEwan said the "standard is to keep the horse safe as he possibl[y] can and the horse handling and the techniques [are not] going to change whether the treadmill [is] at Santa Anita Race Track or if it's on a ranch or if it's in a veterinary clinic." McEwan also testified there was no indication that Rossa was too tired to respond to continued tapping up as the treadmill slowed. McEwan criticized Dr. Richardson's policy of not using a safety harness during treadmill procedures.

At the close of Moses's evidence, Dr. Richardson moved for nonsuit on the ground she did not present expert veterinary testimony on the standards of care applicable to him or Sauter. The court denied the motion, finding the negligence claims were not based on professional malpractice, but on the handling of a horse and operation of a treadmill, issues on which McEwan was qualified to testify as an expert.

The jury was presented with a special verdict form asking whether Dr. Richardson was negligent, and if so, whether the negligence was a proximate cause of Moses's damages. The jury was not asked to determine whether Dr. Richardson's liability was direct, vicarious or both. The jury answered the questions in the affirmative and awarded Moses $59,004.45 in damages. Judgment was entered on March 3, 2000.



" 'A motion for nonsuit ... concedes the truth of the facts proved, but denies as a matter of law that they sustain the plaintiff's case. A trial court may grant a nonsuit only when, disregarding conflicting evidence, viewing the record in the light most favorable to the plaintiff and indulging in every legitimate inference which may be drawn from the evidence, it determines there is no substantial evidence to support a judgment in the plaintiff's favor. [Citations.]' [Citation.]" (Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677.) "[W]e review the rulings on [motions for nonsuit] de novo, employing the same standard which governs the trial court [citation]." (Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1541-1542.)


"The standard of care in a medical malpractice case requires that medical service providers exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances. The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of laymen. [Citation.]" (Alef v. Alta Bates Hospital (1992) 5 Cal .App.4th 208, 215.)

In asserting expert medical testimony was required on his and Sauter's standards of care, Dr. Richardson relies on Williamson v. Prida (1999) 75 Cal.App.4th 1417. There, the court held that expert testimony is required in veterinary malpractice cases because veterinarians are licensed health care providers and the statute of limitations applicable to malpractice actions had been applied in the veterinary context. (Id. at p. 1425.) The court further explained:

" 'The gravamen of [a veterinary malpractice] action is that in providing veterinary care, the veterinarian failed to use such reasonable skill, diligence, and attention as might ordinarily have been expected of careful, skillful, and trustworthy persons in the profession. The courts have generally recognized that for the owner of an animal to prevail in such an action, he or she must prove the relevant recognized standard of care exercised by other veterinarians, the defendant veterinarian's departure from that standard when treating the animal, and some injury to the owner proximately caused by that departure.' [Citation.]" (Ibid., citing Annot., Veterinarian's Liability for Malpractice (1989) 71 A.L.R. 4th 811, 816, 2a.)

Dr. Richardson claims the "use of the treadmill and Sauter's 'tapping up' duties were part of and in the course of, the medical professional's performance of an endoscopic examination of the upper airway of the horse." However, the undisputed evidence establishes that treadmills are used both inside and outside the veterinary context, and a horse should be handled the same on a treadmill regardless of the setting. Further, there is no suggestion of any nexus between the endoscopic examination and Rossa's injury. If a horse were injured on a treadmill at a training facility, expert medical testimony would not be required to prove negligence. The result should not be different merely because the treadmill here was used in a veterinary hospital. In other words, the acts of Dr. Richardson and Sauter are not matters peculiarly within the knowledge of veterinary professionals. Accordingly, Moses could establish the defendants' negligence through the testimony of McEwan, an expert in the areas of horse training and treadmill procedures (see Evid.Code, 720 & 801), and denial of the motion for nonsuit was proper.

Dr. Richardson's reliance on Murillo v. Good Samaritan Hospital (1979) 99 Cal.App.3d 50, is misplaced. There, the court held the alleged negligence--a hospital's failure to keep guard rails up on a patient's bed--was "professional negligence" within the meaning of Code of Civil Procedure section 340.5, which sets forth the statute of limitations for medical malpractice actions. The court broadly stated "the test is whether the negligent act occurred in the rendering of services for which the health care provider is licensed." (Id. at p. 57; see also Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797, 808.) The hospital, however, had a duty to assess whether the patient's condition required keeping the rails up. Here, there is no evidence that Rossa's medical condition or treatment was relevant to her handling on the treadmill. Moreover, our high court has cautioned that Murillo v. Good Samaritan Hospital, supra, 99 Cal.App.3d 50 is not relevant when, as here, a statutory distinction between ordinary and professional is not at issue. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 998-999, 1002, fn. 6.) [FN2]

FN2. Given our holding, we are not required to address Dr. Richardson's assertion the court abused its discretion by not instructing the jury on professional negligence.


The judgment is affirmed. Moses is awarded costs on appeal.

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