Pain and suffering

Veterinary malpractice lawsuit challenges the notion that pets are merely property

Dr. Eve Paprocki lost more than property when her beloved Mysz died.

Dr. Eve Paprocki lost more than property when her beloved Mysz died.

Photo By Larry Dalton

“There’s a medical emergency back in the States,” read the message that reached Dr. Eve Paprocki as she vacationed on the border of Laos. She thought immediately of Mysz.

Returning to her hotel in Bangkok, Paprocki began to search frantically for a quick way home. As she waited, she gathered details. Mysz, the little white Shih Tzu who usually slept under her arm every night, more family member than pet, was stuck in a veterinary hospital in Sacramento, vomiting blood.

Mysz’s pet-sitter, who knew how important the little dog was to her owner, had noticed the blood and rushed Mysz to her usual veterinarian, who recommended a 24-hour hospital called Sacramento Veterinary Surgical Services (SVSS).

The attending veterinarian, Dr. Denny Nolet, recommended emergency surgery. Paprocki spoke with him over the phone from Bangkok. “He says there’s a mass in her stomach,” she recalled. “He thinks it’s cancer. There’s intense bleeding through her insides and he has to operate immediately to save her life.”

As a referral hospital, SVSS takes very delicate cases, usually those too complex or serious for a general practice vet. To handle these cases, SVSS employs four specialists: a cardiologist, an ophthalmologist, an expert in internal medicine, and a practitioner of traditional Chinese medicine and acupuncture.

Dog person
Though Paprocki fostered many dogs as a pet rescuer, Mysz was her first and her undeniable favorite. After a painstaking recovery from years of abuse, Mysz managed the other dogs and Paprocki like a little general, but her health remained very fragile.

Highly responsive to stress, Mysz would get stomach ulcers and other ailments if her normal routine was interrupted. To keep her well, Paprocki had always watched her intently, eliminating every potential stressor. Mysz responded by blossoming into a personable and devoted companion, an animal so dear that Paprocki refers to her regularly as “my baby.”

On such a sensitive and fragile animal, surgery was a risk. A medical doctor, Paprocki knew about that risk and weighed her options carefully. If Dr. Nolet was wrong about the need for surgery, it could unnecessarily weaken Mysz’s health further. If he was right, this procedure could save her life. She asked for a second opinion and was advised that there wasn’t time.

As most of us do in medical cases, Paprocki relied on the authority of the specialist. “I made the most loving decision I could,” she said, “which was to risk her life in an effort to save her life.”

That haunting decision led to days of suffering that finally ended in Mysz’s death. Doctors who performed the surgery found no mass in Mysz’s stomach after all (Paprocki said the vets now deny ever claiming there was a mass, and that the reason for the surgery was to control bleeding).

Though Dr. Nolet wouldn’t discuss Paprocki’s case, he did say that when something [goes wrong], it’s usually due to a failure of communication. In the case of some pet owners, he said, “the pet’s health is the whole world.” They might not understand the treatment, or the risks involved, or the mounting fees—and then sometimes there are personality conflicts.

“You have to establish communication of trust between parties. Sometimes people don’t click. You can try your hardest, but they just don’t trust you.” In his only statement about Mysz, Dr. Nolet said ruefully, “It’s awful about how things turned out.”

Paprocki is now trying to hold Nolet and two other veterinarians then employed by SVSS responsible. She faces an uphill battle, but one that could help change veterinary law if she prevails. Paprocki may have considered Mysz “her baby,” but in the eyes of the state, Mysz was nothing but a piece of property.

Pets as property
In California, veterinary malpractice cases are usually pursued in one of two ways. The first is to try to recoup veterinary and replacement costs through small claims court. Even when these cases are won, the award only compensates for the loss of property.

Animals are still legally considered chattel, or property, about as valuable as a chair. As Sue Geranen, executive director of the Veterinary Medical Board said, “Veterinary medicine started as an agricultural profession. … That has evolved. … The animal’s value to the family has increased with a pet. If something happens to that animal because of negligence or incompetence, I mean, it’s just trauma[tic].”

The laws haven’t evolved with our changing views of human-animal bonds. Veterinary science began for treating farm animals, valued mainly for their monetary worth. Though the science has changed significantly, the laws have not. The new breed of pet owner now pays many thousands of dollars for pacemakers and other advanced treatments for their animals, but the state still assesses the animal by the cost of replacement.

If Paprocki chose small claims court, she’d also have difficulty finding an attorney. Such cases are rarely worth the work, and the vet, who usually has malpractice insurance, hardly feels the sting if he loses.

The Veterinary Medical Board, which reviews consumer complaints against veterinarians, is the second option available to pet owners, though few people know about it.

Geranen said that 500 complaints are made to the board each year, but she estimated that number would be about three times larger if more people were aware of the option. Considering that there are 2,700 licensed facilities in California, and that each of them handles hundreds to thousands of animals a year, it’s not surprising that once a vet receives a citation and fine, he or she rarely receives a second complaint.

Even with the 500 cases reported each year, most are judged “closed, no violation.” When asked why, Geranen said, “It appears to [the consumer] that something was done wrong, but when we look at the corroborating statements and at the medical records, it shows that the procedures were done correctly.”

Geranen shrugged her shoulders, as Enforcement Manager Gina Bayleff added, “Not many cases end in death.”

After losing Mysz, Paprocki wasn’t happy with either option. Mysz’s suffering was so traumatic that Paprocki bypassed both the Vet Board and small claims court. Instead, she filed a civil lawsuit.

Mysz’s final hours
Paprocki’s plane finally touched down in California on March 1, 2000. Her pet-sitter raced her to the hospital. Paprocki walked in expecting to gather up her little dog and take her home, until she saw Mysz lying impassively in a pool of her own vomit, her eyes glazed. IVs snaked out around her. A heart monitor kept track of her heartbeat.

Paprocki stared at her in shock. “What have you done?” she recalls yelling at Mysz’s caretakers. “You’ve killed her!”

Over the next few frantic minutes, Paprocki’s temper exploded. A veterinary tech burst into tears. Paprocki was taken from the room for further discussion. Immediately, Mysz suffered cardiac arrest. She was revived, and as Paprocki recalled, “She comes back, and she recognizes me. … I tell them, please let me hold her. The only chance she has is to feel like I’m back and I’m with her, but they wouldn’t and they wouldn’t … “ Her voice dissolved into a whimper and her hands fell open on her lap as she spoke.

A friend finally convinced the techs to build a bed on the floor of one of the examining rooms. A white blanket was laid out, and Mysz was brought in on her heating pad with her IVs and monitors. Paprocki and Mysz snuggled together in a corner.

“She continued to talk to me, and talk to me,” Paprocki said of Mysz. “Obviously what had happened had been so terrible that she had to get it out of her system.” Slowly, Paprocki calmed Mysz into sleep, grateful that she was resting. “I’m lying there petting her,” Paprocki said, “and then I realize she’s not breathing.”

After CPR failed a second time, Paprocki did the most humane thing she could. She rejected pulmonary massage, and instead said a final good-bye, thereby ending a horrific episode that began with one symptom, and grew to encompass two surgeries, fees totaling more than $4,000, and the death of Paprocki’s closest companion. She was inconsolable.

When the shock of Mysz’s death slowly began to ebb, it left Paprocki with an enduring guilt for authorizing the surgery that began Mysz’s descent. With time, that guilt turned partly to anger. After reviewing medical records and conducting interviews with Nolet and other veterinarians, she contacted attorney Robert Newman.

Legal evolution
Newman is one of a handful of California attorneys heading a recent movement to increase awards in cases of veterinary malpractice. Where a small claims suit might end in the return of vet fees or the cost of a new animal, Newman is pushing for pain and suffering.

“They disregarded her fears,” Newman said of the doctors at SVSS, “and her worst fears were all realized.” He knows it’s an uphill battle, but, in a few cases, judges are beginning to allow torts like “deceit” and “fraud” into veterinary malpractice cases, and awarding punitive and exemplary damages.

Because of cases like Paprocki’s, Newman’s legal assistant, Chuck Leigh, estimated that within five or 10 years, the laws will change to reflect the shift in human-animal relationships. “Ten years ago,” he said, “if Robert was trying to do this [sue for punitive and/or exemplary damages], I’d say he didn’t have a chance.”

Leigh also believes there will be changes in the Veterinary Medical Board, which he feels is “almost useless” because they so rarely find fault with practicing veterinarians.

Geranen agrees that pain and suffering is an important upcoming issue: “Berkeley and a couple of other cities in California have passed laws … to say you don’t own an animal, you’re a guardian. The terminology is guardian, making the animals more like children than animals.”

To Paprocki, this case is a very personal one about losing an animal with whom she shared the deepest and most sympathetic bond, but to her attorney and other professionals, it’s a step toward altering the way the state responds to cases of alleged veterinary malpractice.

As animals become increasingly more intimate members of our families, we’ll continue along the evolutionary path toward laws that respect and uphold the value of human-animal relationships. Though nearly everyone agrees that most veterinarians do everything they can for the animals in their care, the consequences for those who don’t are likely to grow increasingly harsh.