Pre-Purchase Exam Vet Didn’t Disclose Friendship with Seller

by Rachel Kosmal McCart | August 11th, 2011 1:39 PM | 2 Comments

Q:   I had a PPE done.  The horse failed the flexion test. Vet says it’s probably just a farrier issue. I had him to another vet three months later. He diagnosed him with arthritis in his knee. I found out later that the vet that vetted the horse was a personal friend of the family. The vet report that I received a week later did not match what actually happened in PPE. ( It said negative on four flexions) Do I have any legal recourse??

A:  When a buyer hires a veterinarian to perform a pre-purchase examination, and the horse is lame right after purchase, the buyer’s first thought is often that the veterinarian was negligent in performing the pre-purchase examination.  Certainly, finding out afterwards that the pre-purchase veterinarian is good buddies with the sellers doesn’t make the buyer feel too confident about the vet’s objectivity!  However, here are the essential elements of a legal case for a negligently performed pre-purchase examination:

(1)  Something is wrong with the horse, and we know what it is.  The buyer has to be able to show that the horse has a problem, and prove what is causing the problem.   That means the buyer has to have a veterinarian examine the horse and issue a written diagnosis.  To get to a definitive diagnosis, the veterinarian may have to take radiographs, ultrasound the affected limb and/or use other (expensive) diagnostic tools.  The buyer will be responsible for the cost of diagnosis.  Here, it appears you’ve had your vet examine the horse, he/she has pronounced the horse lame, and diagnosed the arthritis.

(2)  What’s wrong with the horse today was wrong during the pre-purchase examination.  Not only does the buyer have to prove what’s wrong with the horse today, they also prove the problem existed at the time of the pre-purchase examination.  The easiest way to prove the horse’s condition was pre-existing is to produce vet records that show the horse was diagnosed with the condition pre-sale.  But, of course, proof is rarely this easy!  There are other ways to prove a problem was pre-existing, however, such as a veterinary opinion that the problem is a congenital defect present since the horse’s birth, a radiologist’s opinion that a fracture’s age pre-dates the sale, or a veterinary opinion that the current problem is a chronic condition that progressed over time and would have certainly begun well prior to the sale.  Here, whether your vet will be able to opine that the horse’s arthritis would have been present at the time of sale probably depends upon how severe/advanced the arthritis is.  Most likely, you will need a radiologist to give you an opinion based upon the horse’s radiographs.

(3)  The pre-purchase veterinarian should have found the problem during the pre-purchase examination.  The buyer has to find a veterinarian who will testify the pre-purchase examination veterinarian should have detected the problem during the exam.  Here, for example, you might be able to find a veterinarian who would state (in writing) that the horse’s arthritis was obvious on radiographs taken during the pre-purchase examination and that any competent veterinarian in that geographic area would have spotted it and noted it to the buyer.  However, if there were no radiographs taken, that makes it very hard to prove that the veterinarian in your case should have found the arthritis, because the vet has issued a written opinion stating that the horse was sound on the day of the exam.  You’d have to produce a videotape of the exam showing that the horse was lame in the arthritic limb.  Also, if the arthritis was so subtle that only a board-certified radiologist would have found it, you won’t be able to hold the local equine vet responsible for not finding it.

(4)  The pre-purchase veterinarian didn’t find the problem during the pre-purchase examination.  If the pre-purchase veterinarian either noted the problem in his/her pre-purchase examination report, or he/she recommended radiographs or other further testing that might have revealed the problem during the pre-purchase examination (and the buyer opted not to do the further testing), the veterinarian was not negligent, and the buyer has no case.  Many unhappy buyers tell me they relied on the vet’s verbal findings during the exam, then were surprised to see things in the vet’s written report that they don’t remember having been mentioned during the exam.  Often, the unhappy buyer received the written report after they’d already bought the horse.  The pre-purchase veterinarian’s written report is not the only source of evidence about the veterinarian’s pre-purchase exam findings, but to overcome it, the buyer would have to show the report wasn’t an accurate representation of the exam findings.  Naturally, this is very difficult to do, unless perhaps the buyer videotaped the entire examination.  Here, you do have a written report that states the horse was not lame at the time of the exam (which is actually more helpful to you than if the report had accurately stated the flexion results!).  However, if the report says anything at all about recommending radiographs of the arthritic limb (and/or a drug screen), that effectively shifts the burden of discovery to you, and the veterinarian is therefore not negligent.

(5)  The buyer was damaged, and in an amount that makes it worth suing over.  Let’s say that the buyer can easily prove 1-4 above (rare, but it happens).  The buyer’s damages are generally:  (1) the difference between the horse’s fair market value with the defect, and the price the buyer paid for the horse; (2) the cost of the negligent pre-purchase examination; (3) the cost of the post-purchase examination; and (4) the cost of post-purchase treatment of the problem (but the treatment price tag has to be reasonable given the horse’s value – i.e., a court will generally not view $20,000 spent on orthopedic surgery for a $6,000 horse as reasonable).  If (1) – (4) do not add up to at least $25,000, the case generally doesn’t make economic sense to even consider further.  In most states, veterinary malpractice litigants pay for their own legal expenses and court costs, with no hope of getting those costs back.  Here’s more information about the economics of lawsuits.

Now, what about the vet’s friendship with the seller?  It’s an obvious conflict of interest, but all by itself, this fact doesn’t make a legal case.  If all the other elements of the case stack up as described above, this undisclosed conflict of interest can come in handy to question the vet’s credibility or suggest a motive for the vet’s failure to find the problem.

About the Author

Rachel Kosmal McCart is an equine attorney and the founder of Equine Legal Solutions, PC, a law firm dedicated to the horse industry. Rachel regularly represents clients in litigation matters and breed association disciplinary hearings, and also provides clients with customized contracts. Equine Legal Solutions also offers a wide range of horse contract forms, such as horse sale and purchase agreements, boarding contracts and equine liability releases. These equine contracts are available for download from Equine Legal Solutions’ website.

This column is provided for informational purposes only and is not intended to be legal advice. Because even small variations in the facts and circumstances of individual legal cases can dramatically affect the advice an attorney would provide, Rachel Kosmal McCart, Equine Legal Solutions and highly recommend that all readers with potential legal cases consult their own attorneys. If you don’t have an attorney, Equine Legal Solutions’ website offers a state-by-state directory of equine attorneys, along with tips for hiring an attorney.

Have an interesting equine legal question? Email us! If we address your question in a column, we will remove all names, locations and other identifying information before publishing it. We reserve the right to edit your question for length, spelling, grammar or other reasons. By emailing your question to us care of this column, you agree that we can publish your question (and our answer to it) in this column.

2 Responses to “Pre-Purchase Exam Vet Didn’t Disclose Friendship with Seller”

  1. Awesome thorough information! Thank-you!!!

  2. An excellent piece. I’m a civil litigator and handle equine cases in Texas and Florida, and I’m always impressed with Rachel’s analyses and clear explanations. Equine Legal Solutions is a great resource for horse owners and trainers.

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