ABSTRACT
Events like avian flu and the Nipah virus outbreaks in Kerala have constantly put veterinarians on the frontline for detecting diseases, but the legal system continues to view veterinary negligence as a strictly personal matter. In India, such cases are largely regulated under the provisions of the Consumer Protection Act, 2019 and tort laws, where the level of care that a veterinarian is supposed to provide is calculated with regard to the damage that has been inflicted on the animal owner, rather than taking into consideration any public health risks. The same approach is observed in both UK and US, where veterinary malpractice is regulated by state tort laws and the Veterinary Surgeons Act, 1966 respectively, and the issue of public health is not relevant to the client-veterinarian relationship at all. In this paper, the two models of veterinary practice will be compared to answer the following question: does the standard of care of a veterinarian consider any public health concerns? This comparison is considered against the international framework for pandemics preparedness, which includes the Tripartite One Health initiative of the WHO, FAO and OIE, as well as the International Health Regulations, 2005, to see whether India’s domestic disease reporting law, the Prevention and Control of Infectious and Contagious Diseases in Animals Act, 2009, can match with the obligations in the US and UK. This paper tries to prove that there are two parallel regimes of law, namely the negligence law and the disease reporting law, in all three jurisdictions and ends with some reform proposals.
KEYWORDS
- One Health
- Veterinary Negligence
- Zoonotic Disease
- Pandemic Preparedness
- Standard of Care
- Disease Reporting
INTRODUCTION
About six out of every ten emerging infectious diseases affecting humans are zoonotic in nature, they transmit from animals and then infect humans.[1] COVID-19 exposed this issue more than anything else, but even prior to it, the existence of such an interface in India was demonstrated by cases of Nipah virus infections in Kerala, recurring avian influenza infections in poultry zones and regular occurrence of rabies and leptospirosis. There is no professional who comes into contact with this interface between human and animal health more frequently than the veterinarian as she or he is usually the first person trained to identify any pathogens which otherwise could cause a transmission.
That alone is enough for us to realize that the standards of care set forth for a veterinarian cannot be considered as a purely private issue between the owner and the clinic. However, while the Government of India apparently recognizes this issue on paper, in its National One Health Mission, approved by the Prime Minister’s Science, Technology and Innovation Advisory Council in 2022 and presently being implemented under the support of Indian Council of Medical Research,[2] it fails to address the issue of law of negligence.
Here is where the problem begins. In case a veterinarian in India faces charges of negligent treatment, there will either be a regular tort claim or a Consumer Protection Act, 2019 claim due to the recent judicial interpretation of veterinary treatment as a ‘service’ that was provided in exchange for something.[3] However, in both cases, the question at hand would be similar to all negligence claims, namely, duty, breach of such duty, and damage suffered by the owner. It will not inquire about the negative consequences of misdiagnosis on public health. The Prevention and Control of Infectious and Contagious Diseases in Animals Act, 2009 obligates the veterinarian to report about the listed diseases; otherwise, he or she commits an offense.[4] But this reporting obligation is isolated from the rest of the legal framework.
It is not even an Indian problem, in that the UK Veterinary Surgeons Act of 1966 maintains ‘ordinary negligence’ and ‘serious professional misconduct,’ which is a much higher threshold and falls under the jurisdiction of the Royal College of Veterinary Surgeons (RCVS), as distinct practices.[5] Similarly, in the US, there is a privately oriented system of veterinary malpractice law since animals are considered legal property and hence damages are restricted to their market value, and standards of care are based on what a reasonably competent veterinarian would have done in a similar community.[6]
The core thesis of this paper is that the regulatory gap identified here is a real one rather than merely a technical one, because the standard of care is applicable for all consultations in a veterinary setting, well in advance of an outbreak becoming critical enough to warrant emergency powers being invoked.
RESEARCH METHODOLOGY
A doctrinal approach has been employed in conducting legal research in this paper, with an added comparative aspect. This approach of research involves examining statutes, regulations and case laws systematically to determine the rules and any gaps.[7] Considering that the research issue involves the contents and structure of the existing rules and not their application, a doctrinal approach is appropriate. In this paper, there will be no use of empirical instruments such as interview or survey, something that will be discussed below.
Comparative aspects will cover three jurisdictions namely; India, UK and the US, which were selected based on their common law jurisdictions with common negligence doctrine, duty, breach, causation, and damage. India remains the most dominant jurisdiction since the paper is based on India’s National One Health Mission and disease reporting statute.
Two sources have been used – Primary sources are the Consumer Protection Act, 2019; 2009 Act; Indian Veterinary Council Act, 1984; Veterinary Surgeons Act 1966 (UK); US State Statutes; and International Health Regulations, 2005.[8] Whereas, secondary sources are academic articles, reports from government policy making bodies, guidance on regulations and credible news reports on One Health Mission in India.
The following research questions inform this paper: is the current standard of care for veterinarians in India, UK and US taking into consideration zoonosis or public health risks? Is there any relationship between the negligence laws concerning veterinarians and disease reporting laws? What changes should be made to incorporate pandemic preparedness into the standard of care?
The working hypothesis of this paper is that negligence laws and disease reporting laws operate as two separate mechanisms that do not interact with each other at all.
LITERATURE REVIEW
The literature which is relevant to this research can be divided into four categories: The One Health standard, veterinary negligence, professional liability laws across jurisdictions and the much narrower body of literature examining the intersection.
Literature on the One Health standard. The concept of ‘One Health’ is relatively widely understood within the literature on public health, being based on the observation that most emerging infections in humans originate from zoonotic pathogens. Within the context of India, the literature on One Health has rapidly increased considerably since 2020, tracking developments starting from the setting up of a One Health Consortium by the Department of Biotechnology in 2021, followed by pilot studies in Karnataka and Uttarakhand, to the establishment of the National One Health Mission in 2022. Much of this literature focuses on policy aspects of the issue, providing a detailed analysis of surveillance structures and inter-ministerial cooperation mechanisms, but rarely exploring the link to an individual veterinarian’s obligations under law. The documents issued by the Mission refer only to an ‘integrated disease control and pandemic preparedness mechanism’, without linking it to the standard of care applicable to an individual practitioner.
Literature on veterinary negligence. The literature on veterinary malpractice in India is not as abundant as the literature available for medical malpractice. Forums of consumers have interpreted the definition of “service” in the Consumer Protection Act in light of the judgment in Indian Medical Association v. V.P. Shantha where it has been interpreted that “medical service performed on payment constitutes a ‘service’”.[9] Standard of care has been defined in Jacob Mathew vs. State of Punjab where it needs to be proven that the person concerned did not act up to the standard of a reasonable member of that profession according to the knowledge available at that time.[10]
The UK law on veterinary medicine is relatively advanced because its legislation is fairly well established. The RCVS differentiates between “negligence,” which can be redressed by means of civil actions or arbitration, and “serious professional misconduct,” a higher standard of breach of law and the only one to invoke disciplinary sanctions in terms of the Veterinary Surgeons Act of 1966.[11]
American literature tends to emphasize the issue of classification as property. As animals in America are considered to be private property, the discussion revolves around compensation for the damage caused to the animal, rather than the standard of care, which is restricted to the market value of the animal or the expense required for treatment. The standard of care is determined based upon what a reasonably competent practitioner within a similar community would have done.[12]
In Indian literature, which addresses the issue of legal preparation for pandemics, the Epidemic Diseases Act, 1897 and Disaster Management Act, 2005, which only start to work when the outbreak is declared and do not cover prevention measures performed by veterinarians on a daily basis, are the only laws mentioned.[13] The 2009 Act is also addressed solely as a veterinary legislation concerning trade and animal husbandry rather than a public health legislation and the instrument of negligence law. The literature in the international sphere, where the topic of the WHO-FAO-WOAH, One Health approach and IHR, 2005, is examined, resembles it.[14]
All three literatures, when taken together, show the same kind of trend: plenty is known individually about veterinary negligence law, and zoonotic surveillance and pandemics, but there is an absence of analysis of the interface between the two, i.e., whether the standard of care required for veterinarians takes into consideration the public health consequences of failure to diagnose. The aim of this paper is to fill that gap.
METHOD
In this section, the doctrine-based methodology will be used to analyse the interaction, or lack thereof, between the four elements of negligence – duty, breach, causation, and damage- and the statutory disease reporting requirements, jurisdiction by jurisdiction.
1. Duty of care: duty of care towards who?
In all three jurisdictions, the vet’s duty of care exists in relation to the animal’s owner, not in relation to the general public. In India, the reason for this is that the consumer law-based reasoning in the case of V.P. Shantha, treating veterinary services as “services” performed for pay, makes it necessarily a reciprocal obligation. This is the same reasoning that can be found in the UK, where RCVS Code situates the duty in the context of the veterinarian’s professional relationship, as well as in the US, where the formation of a “Veterinarian-Client-Patient Relationship” establishes the duty in question in the first place.[15] No form of freestanding duty of care to the public or public health, despite the whole idea behind the “One Health” concept.
2. Breach: a standard of care that’s backward-looking, not forward-thinking.
In all three legal frameworks, the standard of care is established in relation to the reasonably competent practitioner based on Jacob Mathew of India, the RCVS guidelines in the UK, and the state case law in the US. The standard is comparative in nature and, backward-looking; the question is posed not in terms of what the particular risk of disease requires, but of what the practices of other competent practitioners would generally be. It is important in this context, because if it is indeed true that failure to recognize symptoms of zoonotic disease is a widespread blind spot within the profession, as indicated in the literature above, then that is precisely what the standard embodies.
3. The issue of causation and the challenge of the ‘intervening public’.
Even assuming a breach is established, the next step presents an additional hurdle. In the standard case of a negligence claim brought against a veterinarian, the element of causation is rather straightforward in that it requires proof only that the particular mistake on the part of the veterinarian caused the injury or death of the animal. But for the pandemic defence context, the causal chain becomes much more complicated in that it would have to be established that the failure to diagnose had caused not only the subsequent spread of the disease among other animals but also transmission to humans. Under tort law in all three jurisdictions, there needs to be a direct and proximate causal connection between the breach and the damage caused.[16]
4. Damage – a category which leaves no room for public harm.
In the case of damages, it must be noted that in all three legal regimes, they are based only on private harm. In India, this translates into any losses, costs of treatment, and the monetary value of the animal. In the US, it is even clearer because animals are treated as property, and thus the damages are limited by either the market value or the replacement cost of the animal. There is, however, a few numbers of states which allow the claimants to receive damage for their emotional distress. In the UK, again, this is based on the same principle, while the RCVS has no powers to impose damages for negligence at all.
5. The division between laws of negligence and those of disease reporting.
Alongside all of this is the Indian Act of 2009 that imposes on veterinarians an independent obligation to report scheduled diseases, with criminal penalties attached for a failure to do so. However, this obligation exists entirely independent of any laws of negligence because a failure to report will give rise to liability under the Indian Act but not necessarily constitute a civil wrong, and a finding of negligence cannot be made dependent on proving a failure to report. Two independent legal systems exist, private and civil in nature on one side, and public and criminal on the other, but there is no link between them at all. This is similar to what happens in the UK and the US.
Synthesis. Putting these arguments together, there is a strong indication that the above-discussed problem is structural and not merely one of the lacks of policy discussion. In terms of duty, breach, causation, and damages, all the elements have been set up in relation to the bilateral interaction between the vet and the client, whereas the statutes which consider public health concerns exist on a parallel path that is completely unconnected from the negligence doctrine. And, the standard of care, arguably the most common tool of law does not include any mechanism for pandemic risk.
SUGGESTIONS
Based on the findings outlined in the Method section, the following recommendations, are suggested:
1. Connect failure to report diseases with professional misconduct. Currently, a conviction of failure to report a scheduled disease under the 2009 Act does not have any consequences for the veterinary licence holder. An amendment to the Indian Veterinary Council Act, 1984 to make the conviction of failure to report a disease professional misconduct, resulting in an investigation by the Veterinary Council of India, is a cost-effective solution, as it simply bridges two existing frameworks.[17]
2. Ensuring zoonotic risk considerations are built into the standard of care. The standard of care could include the requirement for a vet to be informed about a regional zoonotic of diseases, with continuing education from the Veterinary Council of India serving as a compliance mechanism. This way, the behaviour is influenced proactively, not reactively, as it would be through a lawsuit.
3. Establish a narrow statutory duty towards the public, limited to situations in which a veterinarian notices the symptoms of a disease scheduled under the 2009 Act.
4. A disputable presumption to reduce causation burden. Where a veterinarian has failed to report the existence of any symptoms of a schedule disease and there has been an outbreak in the same area, causation may be presumed with the burden then being on the veterinarian to rebut it, using the reverse burden of proof which has already been provided for in Indian environmental law.
5. Establishment of a special public health compensation system. A special fund may be established through contributions from professional indemnity insurance, compensating anyone who has suffered public health damage because of a disciplinary determination.
CONCLUSION
It is questioned in this paper, whether laws regarding veterinary negligence in India, the United Kingdom, and the US have the capability to serve as an early defence mechanism against pandemics. As this paper argues, that they do not, and this is not due to carelessness in any way rather, that is how the law of negligence was not developed. Duty, breach, cause, and damages are all tailored around the private connection between the veterinarian and the client.
This is important due to the fact that policy has moved ahead of the law in this case. The National One Health Mission in India realises that the health of animals and humans cannot be effectively managed separately, but this has not yet translated into the one benchmark in law that applies in every single consultation with a veterinarian, which is the standard of care. If a veterinarian overlooks a sign indicating that an animal is carrying a zoonotic disease simply because the standard of care does not require the veterinarian to consider this at all, then the veterinarian is not guilty of any wrongdoing in the eyes of the law.
These proposals in this paper, whether cross referencing the conviction history with licensing or a presumption of causation or a compensation fund, build on existing practice instead of displacing it, placing a further layer of public law on top of an underlying private law of negligence.
Pandemic planning is normally considered in the context of surveillance and emergency powers, but these apply only after the disease outbreak has begun. This paper has attempted to demonstrate that proper pandemic preparation also hinges on something more basic and every day: the veterinarian’s ordinary professional judgment. Unless that is part of the standard of care, pandemic preparation will fall short precisely where it counts.
Rawnak Saleha
KIIT University – School of Law, Bhubaneswar, Odisha
[1] World Health Organization, Zoonoses (Fact Sheet, 2020)
[2] Principal Scientific Adviser, National One Health Mission.
[3] Consumer Protection Act, 2019; Indian Medical Association v. V.P. Shantha, (1995) 6SCC 651.
[4] Prevention and Control of Infectious and Contagious Diseases in Animals Act, 2009.
[5] Veterinary Surgeons Act, 1966, c. 36 (UK); RCVS, Serious Professional Misconduct and Negligence Explained.
[6] Davis S. Favre, Veterinarian Malpractice, Animal Legal & Historical Centre.
[7] Hutchinson & Duncan, Doctrinal Legal Research, 17(1) Deakin L. Rev. 83 (2012).
[8] Indian Veterinary Council Act, 1984; IHR (2005); WHO-FAO-WOAH One Health Framework.
[9] Indian Medical Association v. V.P. Shantha, (1995) 6 SCC 651.
[10] Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.
[11] EFRA Committee, The Regulation of the Veterinary Profession, HC 348 (2008)
[12] Justia, Veterinary Malpractice Law.
[13] Epidemic Diseases Act, 1897; Disaster Management Act, 2005.
[14] WHO-FAO-WOAH Quadripartite One Health Framework; IHR (2005).
[15] RCVS, Code of Professional Conduct; Nolo, Veterinary Malpractice Lawsuits.
[16] Proximate cause and intervening acts under Indian, UK, and US tort doctrine.
[17] Indian Veterinary Council Act, 1984, No. 52 of 1984.