Need Help Finding an Expert Witness for Maltreatment of a Dog in NY

August 28, 2013 11:23 AM

I took my dog to the vet clinic for what I thought was a simple spay but she almost died because of maltreatment and negligence. We ended up taking her to emergency and spent almost four thousand dollars. The doctor has refused to take responsibility for her actions. We have decided to sue her and will have our day in court next week. However we need an "expert" witness someone with a medical background that has a lot of experience with dogs to come or our case will not be heard. Hive could you help us find such an individual in NYC? We are willing to pay.

I took my lovely dog Lily to the vet in order to get spayed. The doctor committed negligence and somehow my dog ended up with burns on her body. After we got her back we noticed she was dying and had to take her to an emergency hospital where the bill was higher than $4K. The original vet has refused to take on responsibility for her acts so we are suing her to recoup these funds and to avoid other animals from getting here. She has lawyered up (we haven't) and we are having our day in court soon. The judge will not hear our case unless we have an expert witness but we are having trouble finding someone with such a background in NYC. Could you help us and/or recommend us someone?

We not only want to recoup our costs but also do not want other animals/pet owners to go through the pain we went through.

posted by The1andonly to Pets & Animals (24 answers total)

This is something you need a lawyer for. Part of what they will be getting paid for is finding you the expert witness.
posted by JPD at 11:26 AM on August 28, 2013 [21 favorites]

I don't think there are any veterinary schools in NYC, but there are several Vet Tech schools -- at some of the CUNYs and LaGuardia, it looks like from a quick google search. They probably have people who have experience caring for dogs. Also, other veterinarians are an obvious schoice -- someone at the emergency where you took the dog? Or just start calling vets and asking?

But I agree with JPD that this is going to be one hell of an uphill battle without a lawyer, especially if the vet has one.
posted by brainmouse at 11:28 AM on August 28, 2013 [2 favorites]

Seconding what JPD said above.
posted by tckma at 11:28 AM on August 28, 2013 [1 favorite]

You should not go to court without an advocate if the other party has lawyered up. If it were me, I would seek to postpone until I had more support and confidence in my case.
posted by thinkpiece at 11:32 AM on August 28, 2013 [3 favorites]

Another vet will have to review the records and agree that the doctor in question was negligent.

Here's a firm that will search for and find an expert for you.

Got that from Google, so who knows if it's any good.
posted by Ruthless Bunny at 11:34 AM on August 28, 2013 [1 favorite]

I would think the people you took the dog to would be the best suited to talk about the situation.
posted by pwb503 at 11:38 AM on August 28, 2013 [7 favorites]

The small claims limit in NY is $5000. Why don't you take it to Small Claims Court instead, where neither of you will be able to use a lawyer? Could make it a more even battle. (I'm not sure whether or not experts are allowed in small claims.)
posted by BlahLaLa at 11:38 AM on August 28, 2013 [2 favorites]

Response by poster: Hey guys, don't want to babysit the threat but to answer your questions:

1) We took it to small claims court and NYC apparently does not mind lawyers there.

2) The judge was the person who asked for the expert.

We originally went to the vet to discuss our concerns but she dismissed us. I believe she is afraid of losing her license so it is not in her benefit to admit any kind of culpability whatsoever.
posted by The1andonly at 11:43 AM on August 28, 2013 [1 favorite]

I believe she is afraid of losing her license so it is not in her benefit to admit any kind of culpability whatsoever.

If you have reason to believe she's going to lose her license (and livelihood) over this, you also have reason to believe she is going to get the best lawyer she can afford (or maybe even better than that). Don't bring a knife to a gunfight.
posted by griphus at 11:48 AM on August 28, 2013 [12 favorites]

The1andonly: We not only want to recoup our costs but also do not want other animals/pet owners to go through the pain we went through.

You may have better luck with the second part of your statement if you pursue a complaint through the State Board of Veterinary Medicine. It looks like this is the place to start in NY.

griphus: she is going to get the best lawyer she can afford

You mean the best lawyer her malpractice insurance company can afford, and they can afford a lot.
posted by Rock Steady at 11:51 AM on August 28, 2013 [5 favorites]

Why wouldn't the doctor who treated the dog in the ER testify to what s/he saw?
posted by gjc at 11:52 AM on August 28, 2013 [8 favorites]

I would think the people you took the dog to would be the best suited to talk about the situation.

We originally went to the vet to discuss our concerns but she dismissed us. I believe she is afraid of losing her license so it is not in her benefit to admit any kind of culpability whatsoever

I believe that the Emergency Vet is indicated here, not the vet you suspect of malpractice. Would the Emergency Vet be willing to provide expert testimony that the vet who did the surgery did something unorthodox, or incorrectly that caused your dog to need additional, emergency care?
posted by Ruthless Bunny at 11:54 AM on August 28, 2013

Small claims NYC allows lawyers; she most likely has one from her insurance company and/or at her own expense (what is best for the insurance company is not always best for the doctor).

I'd try contacting the emergency vet hospital you went to and see if anyone there does expert witness testimony. You can try to subpoena the vet that saw your pup in the emergency room to testify about what he/she saw (but this doesn't necessarily mean that that person will be certified as an expert). I'd also try contacting Cornell vet school to see if anyone there routinely testifies.

Keep in mind that expert witnesses are very expensive - hourly fees are usually around $500/hr plus expenses, and you have to pay for the time they take to review the file before trial.

Personally, I would just pursue it with the licensing board.
posted by melissasaurus at 11:58 AM on August 28, 2013 [1 favorite]

Response by poster: Emergency vet is also not willing to cooperate and told us that it would be too time consuming. Also seems to be a bit of a fraternity kind of thing where they may not tell on each other or they only do so in the most egregious cases. Can't speak for all vets but that was the vibe we got. Instead they provided us with extensive documentation of the findings.
posted by The1andonly at 12:00 PM on August 28, 2013

I would call around to some other vets offices and ask if they'd be willing to review the paperwork and testify about it, or, yeah, subpoena the emergency vet.
posted by zug at 12:09 PM on August 28, 2013 [1 favorite]

The1andonly: Also seems to be a bit of a fraternity kind of thing where they may not tell on each other or they only do so in the most egregious cases.

You have to realize that emergency vets absolutely rely on referrals from regular vets for their business. If an emergency vet was to testify against a referring vet, the vast majority of their patients would disappear almost instantaneously.
posted by Rock Steady at 12:10 PM on August 28, 2013 [2 favorites]

IANYL; TINLA

My experience with these types of cases (med-mal) is that the court will dismiss if you don't have an expert ready to testify as to what the other doctor did wrong. If your court case is next week, it is going to be very difficult if not impossible to retain an expert. The reason it will be difficult is that the expert will need to review all documentation related to the botched operation and subsequent ER operation and come to a conclusion about what went wrong--specifically how the first doctor acted negligently. Hiring an expert is not a simple as calling someone and having them show up at court on a specific day for an hour.

Also, in all likelihood, hiring an attorney and expert will cost significantly more than $4,000. That being said, you need to hire a lawyer if you want to have a chance to win this case--and the hearing will have to be pushed off until you can find an expert.
posted by unreasonable at 12:15 PM on August 28, 2013 [3 favorites]

Have you contacted the ASPCA?

They have a big center up on 91st and 1st.
posted by brookeb at 12:33 PM on August 28, 2013 [3 favorites]

Your trial is next WEEK? And you don't have an expert who has even looked at the documentation let alone prepared to testify? It seems your best bet is to seek an adjournment of next week's court date so you can get your ducks in a row. Maybe also an order that the vet disclose her records relating to your dog's treatment if that hasn't already been done. One week is a ludicrously short time-frame to be arranging witnesses in, and that goes ten-fold for experts.
posted by Pomo at 1:03 PM on August 28, 2013 [2 favorites]

IANYL; TINLA.

I agree with unreasonable. A lawyer and an expert are going to cost more than $4,000. So, you have to make a decision about whether or not you are doing this to recover the medical fees or if you are doing this to "send a message". Since you talk about having "your day in court", I suspect this is more about "the message". That's fine, but just realize that if you want to win, an expert and lawyer are going to be expensive and I do not think you have a fees entitlement. Also, while I do not know who the vet's lawyer is, I am confident he/she will destroy you at a trial. The trial isn't about who is more sympathetic or getting the judge to see things "your way". It's about what you can prove, and based on your question, I am wondering what it is you can prove about the vet's negligence. You need to do better than "somehow". Like, how do you know Lily was "dying"? I am not giving you a hard time, but you can definitely expect a hard time from the vet's lawyer.

Last, this is something you need to figure out now. You are getting some advice to "postpone", but it doesn't work that way. Small claims is designed to be speedy and the judge will not wait around very long while you figure this out. If you show up for your court date next week and say, "we need more time", do not be surprised if the judge says, "too bad" and that is the end of your case. Frankly, I have never heard of the expert who will agree to testify at trial with less than a week to review the file and prepare. I do not think you are going to have an expert. I'm sorry, but you are not prepared.

Why wouldn't the doctor who treated the dog in the ER testify to what s/he saw?

They can. However, that would be fact testimony, not expert testimony. Fact testimony is talking about what you saw; expert testimony is talking about how you think it got that way. The treating physician can be an expert, generally, but they need to be disclosed as such.
posted by Tanizaki at 1:04 PM on August 28, 2013 [2 favorites]

If this were me I would stand outside the offending vet's office with a sign and a picture of your dog, and tell all the customers walking in what happened. That will give you way more leverage than any judge in this situation, and it will also let people know about the risks to their pets.

And I am so, so sorry about your dog. What a terrible thing. Good for you for trying to do the right thing and follow through so this doesn't happen to someone else.
posted by walla at 6:44 PM on August 28, 2013 [1 favorite]

If this were me I would stand outside the offending vet's office with a sign and a picture of your dog, and tell all the customers walking in what happened. That will give you way more leverage than any judge in this situation, and it will also let people know about the risks to their pets.

OP, this would be an excellent way to get the vet to file a defamation suit against you.
posted by Tanizaki at 6:53 PM on August 28, 2013

Tanizaki, not to hijack, but how would that be different from a terrible review on Yelp? Would it just be a matter of the degree of provocation? Because if sending a message is at least part of the point here and the OP doesn't want to spend $4000 to do it, what might be the best legally sound way to do it?
posted by walla at 7:09 PM on August 28, 2013

but how would that be different from a terrible review on Yelp?

There is nothing that says a terrible review on Yelp cannot be defamatory. Don't think you are safe on Yelp. This sort of thing can matter from state to state, but generally, statements of opinion cannot be defamatory but statements of fact can be. The reason that Yelp reviews don't tend to start a lot of defamation suits is because they are statements of opinion e.g. "my food tasted bad" or if they are statements of fact, they are statements of such little consequence that no one can be bothered with legal retaliation. Also, it would be pretty bad PR if a restaurant sued a Yelp reviewer for defaming their salsa.

However, proclaiming, "Dr. X committed malpractice" is a much higher stakes statement even if it is true. Truth is a defense to defamation, but OP hasn't proved that Dr. X committed malpractice. I suppose she could say, "I have filed a malpractice suit against Dr. X" because that is true, but maybe she's setting herself up for a tortious interference claim. Also, it is probably not worth it. Whenever I see a person or three demonstrating outside some business, I tend to think those people are cranks. I suspect I am not in the minority in this regard.

Again, these are very general statements of information about defamation law. I have no idea how NY may have its own intricacies. I just really, really recommend against anyone using "I will tell bad things about you to other people" as a strategy to right personal wrongs. It can really set one up for a bad time.

Oh, and I forgot to mention this in my first comment, but a malpractice suit, even if successful, is not going to restrain the vet from practicing in the future. If that is the real concern, the best course is to file a grievance with the state regulatory body. All a malpractice suit does is try to recoup the damages caused by the malpractice in monetary terms.
posted by Tanizaki at 7:38 PM on August 28, 2013