Few subjects in veterinary medicine have provoked more discussion than the prepurchase examination of equids, and apparently, few subjects continue to be ignored or treated so lackadaisically. A 10-year retrospective review of the AVMA PLIT records revealed a substantial number of malpractice claims that have been related to the prepurchase examination.
The veterinarian conducting the examination is not expected to be Nostradamus with an unerring view of the future; however, the way in which the examination is conducted could affect his or her future. The veterinarian is expected to conduct a thorough and complete examination under circumstances that permit careful inspection and evaluation of the horse at rest and under stress conditions applicable to its intended use. The examination should be done by appointment and should include procedures consistent with accepted standards and the intended use of the horse (eg, unless the intended use is breeding, a rectal examination may not be necessary)—not what the buyer or the buyer's agent requests or dictates. Once the practitioner defers to the buyer or the buyer's agent, he or she compromises the findings and thejudgment and must be responsible for the consequences, which may include litigation. Many, if not most, of the complaints filed by plaintiffs are attributable to such compromises. Likewise, defense against such claims is compromised from the start.
Many factors tend to undermine thorough examinations. The first factor may be the practitioner's dependence on laboratory tests and imaging technology, including endoscopy and computerized ultra-sonographic and radiographic images as well as digitized laryngoscopic photographic images. Although these are valuable diagnostic tools, they are not substitutes for a rigorous physical examination that includes the use of organoleptic senses. Sadly, the rapid advances of diagnostic technology may be taking precedence over the veterinarian's natural senses. Practitioners should pay attention to their reactive unconscious. If on first impression, it doesn't look or feel right, it probably isn't.
The second factor is deferring to the wishes of the buyer or his or her agent to the degree that the practitioner yields professional judgment to lay opinion. In an effort to be accommodating, the veterinarian may suppress his or her professional judgment and limit the examination to just those measures requested by the buyer or agent. Regrettably, this often extends into treatments, such as where the layman tells the veterinarian to inject substances into affected joints and give medications so that the horse can race or show. If the veterinarian is to keep the account and meet the competition, he or she may feel obligated to do as requested. As an example, the veterinarian may obtain the radiographic views requested by the layman or limit the examination to whatever he or she is told to do. The risk in that is that when the horse becomes ill or cannot perform as expected, the new owner may not remember having given instructions at the time of the prepurchase examination. The new owner may only remember that he or she bought the horse on the advice of the veterinarian, and now the horse is lame or noisy, for example. Unfortunately, the record of the examination and the terms of the agreement often are incomplete, and the veterinarian's case is indefensible.
A variation of the second factor is where the prospective buyer (or his or her child) has become enamored with the horse and desires the slimmest excuse to buy it. Same song, second verse; the horse comes in lame on the second workout, and all of a sudden $10,000 was too much to pay.
The third factor is when some portion of the examination is not done because of circumstances beyond the control of the veterinarian (eg, the horse was not examined at speed because it was too young to be ridden, there was no rider, or the environment was too dangerous). In those instances, it is important to document these facts and indicate that the owner had been advised of the possible risks flowing from the inability to conduct that portion of the examination.
In years past, horse trading was serious business, conducted between cagey buyers and sharp traders. The law was caveat emptor—buyer beware—and the loser in a deal was embarrassed at having been bested and didn't mention it if avoidable. Nowadays, a losing deal becomes a cause célèbre, and litigation is the first resort, with the veterinarian inevitably becoming the scapegoat.
Ideally, to avoid this unfortunate situation, the prepurchase examination record should include the following:
bull; Positive identification, including breed, sex, color and markings, brands, tattoos, computer chips, and age, by registration papers or as much specific information as possible.
bull; Medical history, including documentation of and any express and implied warranties against vices, illness, surgery, treatments, and all related incidents.
bull; Results of a general examination done with the horse at rest (preferably in the horse's own stall to facilitate checking for vices and behavioral problems), including determination of its physical condition, attitude (demeanor), temperament, stance (posture), and conformation. The record should include results of a “painting the horse” examination, whereby the veterinarian systematically passes his or her eyes and hands over the common integument, eyes, ears, scars, and blemishes and all body orifices. Also included should be values for all vital signs. Include height in hands at withers and weight if possible. When practicable, another examination should be conducted with the horse at work to compare resting values with those obtained while the horse was at work, including time required to return to resting values. This also provides opportunity to evaluate noise (eg, signs of roaring, heaves, and heart murmurs), evidence of epistaxis, and lameness.
bull; Results of any special examinations determined to be desirable, including an examination of all organ systems, the oral cavity, the pelvic area, and the feet and limbs. Results of laryngoscopy, ophthalmoscopy, radiography, ultrasonography, hematology, and serology should be included, as well as results of a Coggins test for equine infectious anemia. It may be indicated to test for blood concentrations of performance-enhancing drugs, most notably phenylbutazone.
bull; Documentation of all examination results. It is of critical importance to the defense of a malpractice claim that records of all findings be complete and legible, bearing in mind they are subject to subpoena in a court of law and constitute the veterinarian's best defense in the event of a challenge. The report to the prospective buyer should state in clear and incontestable language that the findings were made at a specifically named location, on a specific date, and under recorded conditions. The identity of the witness should be given. The report should also state that while the findings are not a prediction of what may occur hereafter, they may be used as of the date of examination to influence the prospective buyer's decision.
Any finding that constitutes an existing unsoundness or predisposition to unsoundness should be clearly described. No attempt should be made to diagnose or treat a malady. There must be clear separation between what constitutes an existing unsoundness or predisposition to unsoundness at a prepurchase examination and what may later become a medical or surgical condition. In addition, there should be no speculation as to what may happen in the future. Either the horse was healthy or it was not. Flaws may be used by the buyer to negotiate more favorable terms, but the examining veterinarian should not get involved with the negotiation. Also, as part of the record, it is important that the veterinarian state in unequivocal terms that he or she is not the buyer's agent and not legally liable for the buy-er's decision to accept or reject the terms of the sale.
Although not customarily done, an additional precaution, easily executed, is to have the report witnessed and notarized, to become a legal instrument just like a bill of sale. Duplicate notarized copies should be retained by the veterinarian and the buyer.
Finally, all records, including, but not limited to, radiographs, ultrasonograms, results of blood tests, and results of laryngoscopies, are the permanent medical records of the veterinarian. Copies may be loaned, but the originals should never leave the veterinarian's confidential files.
It should be obvious that a prepurchase examination is an elective procedure that should be scheduled with adequate time and conducted under the best of circumstances with the understanding that any departure from these arrangements warrants rescheduling or cancellation. Full cooperation should be expected and required from the seller and stable personnel, and no interference from the client should be allowed. Conflicts of interest abort the examination, as do any observable abnormalities. If these principles are adhered to without compromise, serious legal challenge should be nonexistent.
It should be understood that what has been described approaches the ideal and that, in the field, every procedure may not be performed to the degree specified. However, virtually every point represents possible instances of error, dissatisfaction, and legal contest. In detailing caveats, let not only the buyer beware, but also the veterinarian.
