JACK AUSTIN v. THE STATE OF ILLINOIS (2002)

OPINION

Claimant, Jack Austin, filed his two-count Complaint sounding in veterinary malpractice and breach of contract on July 28, 1997. Claimant seeks damages of $15,869.04. Claimant also seeks interest on $600.00 that was paid by Claimant to Respondent for services which were not performed. The cause was tried before Commissioner Clark.

The Facts

The Claimant testified that in early April of 1997, his Doberman Pinscher dog, Dirty Red, was diagnosed by his local veterinarian, Dr. Lesch, with malignant lymphoma. Dr. Lesch referred Claimant to the University of Illinois Veterinarian Teaching Hospital for treatment where the Claimant's dog came under the care of Dr. Barbara Kitchell, a board-certified veterinarian oncologist.

On April 8, 1997, Dr. Kitchell determined to use a specific protocol of drugs to treat the Claimant's dog for lymphoma. This drug treatment was a protocol that was not available through Claimant's local veterinarian and was the reason Claimant traveled to the University of Illinois, 168 miles each way. The treatments were to be administered weekly. There is no question that Respondent agreed to treat the dog through chemotherapy and Claimant agreed to pay for the care and treatment of his dog. After April 9, 1997, Dirty Red had a positive response to the drugs used in the first protocol treatment.

On April 16, 1997, the dog was again admitted to the hospital to be administered drugs. Dr. Kitchell was not present on April 16, 1997. The chemotherapy flow sheet was not initialed by a clinician or by an administrator. The Respondent called no witnesses to testify they administered the appropriate chemotherapy drugs to Dirty Red on April 6, 1997. There were also no authorization forms or estimates prepared for the April 16, 1997, treatment. The dog was not lethargic on the way home as he had been after the first drug treatment.

After April 16, 1997, the dog suffered a relapse. On April 21, 1997, Dr. Kitchell changed the protocol because she stated the dog had failed the initial protocol. Dr. Kitchell prescribed Adrianmycin which was the same drug the Claimant could have obtained from his local veterinarian. This drug treatment was to be administered every three weeks.

On May 13, 1997, Dr. Kitchell indicated that surgery was necessary to send a sample of the cancer to a lab in Rhode Island for a special test. Claimant paid Respondent $1,151.27 for the surgery and test. The test was never performed in Rhode Island. The test itself cost $600 and has never been refunded to Claimant. Dirty Red died on June 10, 1997. The veterinary records for Dirty Red have numerous crossouts, decimal points in the wrong place, wrong clinical numbers and names.

The Law

To prevail in a veterinary malpractice case against the Respondent, the Claimant must prove the standard of care, that there was a deviation from the standard of care, that the deviation was a proximate cause of the injury, and the damages that naturally flow therefrom. Stanley v. The Board of Trustees of the University of Illinois, (1986), 39 Ill.Ct.Cl. 107. This is the Claimant's burden of proof to prove by a preponderance of the evidence. This court has reviewed all of the testimony and reviewed all of the exhibits very carefully. However, we need only discuss here the testimony of Claimant's expert Dr. Lesch, to determine that Claimant has not met his burden of proof on the veterinary malpractice claim.

It is clear that the Respondent's witnesses have not opined that Respondent deviated from the standard of care and that any deviation was a proximate cause of the dog's injury. In fact, Respondent's experts and Dr. Kitchell testified Respondent did not deviate from the standard of care. Therefore, we must look closely at the testimony of Claimant's expert. Dr. Lesch testified that the proposed treatment plan was above the standard of care. On cross-examination of Dr. Lesch by Respondent's counsel, we find that Claimant's veterinary malpractice claim is doomed where Dr. Lesch testified:

Q. As you sit here today, you do not know to a reasonable degree of certainty in your profession whether or not those things that you have described as possible departure from the standard of care caused the dog to die or not, correct?

A. That's correct.

For the purpose of the veterinary malpractice claim, this Court does not have to rule on the proof of standard of care or any deviations therefrom because Claimant's own expert witness testified that he could not testify that any of the deviations he referred to were a proximate cause of Dirty Red's injuries. This is understandable because the protocol's success could only be measured in percentages. For the foregoing reasons, we must reject Claimant's veterinary malpractice claim.

The Claimant also presented a breach of contract claim. To prevail, Claimant must prove by a preponderance of the evidence that there was a contract, that Respondent breached the contract, and his damages. Black v. State of Illinois, (1976), 49 Ill.Ct.Cl. 143; Douglas v. State of Illinois, (1977), 31 Ill.Ct.Cl. 499. There is uncontradicted proof that Dr. Kitchell, on behalf of Respondent, contracted with Claimant to care and treat Claimant's dog pursuant to a specific drug protocol which was above the standard of most veterinarians. Claimant agreed to and did pay Respondent for such services. There was a contract established by the proofs. Claimant also proved by a preponderance of the evidence that Respondent breached the contract in two specific instances.

Claimant proved by a preponderance of the evidence that the protocol drugs were not administered to Dirty Red on April 16, 1997. This Court, as do most courts, gives great deference to physicians and veterinarians because of the great number of patients they see and care for. This Court recognizes that a veterinarian cannot remember everything that was said and done in regard to a specific patient. Therefore, great weight is given to the veterinary records. The chart in this case was very poorly kept. The Court cannot and does not find on the state of the record that the protocol drugs were given to Dirty Red on April 16, 1997. No veterinarian or administrator signed off on the administration of the protocol. The chemotherapy work sheet is not initialed to prove that the chemotherapy drugs were given to Dirty Red on April 16, 1997. If the data is not on the chart, we cannot find the prescribed drugs were administered. Also, Respondent failed to bring forth any witnesses to testify in court that they administered the drugs to Dirty Red on April 16, 1997. This is a classic case for the missing witness rule. The principle of the rule is that failure of a party to produce evidence available to that party and which could have been produced if that party's position was true, gives rise to a presumption against the party. McCarthy Brothers Co. v. State of Illinois, (1995), 47 Ill.Ct.Cl. 15.

The chemotherapy flow sheet fails to establish the drugs were administered to Dirty Red on April 16, 1997. Dr. Kitchell was not present on April 16, 1997. The Respondent failed to call one of their employees to testify they administered the drugs. Even Dr. Gregory MacEwen, Respondent's expert, testified:

Q. Do you see an administrator's signature? Can you tell me who gave the dose on the 16th of April?

A. It's blank.

Q. Do you know why that would be blank?

A. I have no idea.

Q. And you just said the administrator is the one that actually gives the dogs the drugs; isn't that a fact?

A. Yes...

Q. Do you see a signature for an administrator on April 16, 1997?

A. There are no initials in the box there?...

Q. Isn't that an indication that he didn't have his drugs four days earlier?

A. I can see where you would say that. I can understand how you would believe that.

The contract was breached.

The second major breach was that Respondent contracted with Claimant to have a test performed in Rhode Island. Claimant paid Respondent $600.00 for the test. The test was never performed. Respondent has not repaid Claimant the $600.00. There was no evidence presented by Respondent to justify the failure to refund the $600.00.

Claimant must also prove his damages by a preponderance of the evidence. Claimant received what he contracted for in regard to the April 8-9, 1997, admission. The breach occurred on April 16, 1997. Claimant should not have to pay for care and treatment on and after April 16, 1997, due to the breach, which includes the Rhode Island test which he paid for and which was not performed. The services provided by Respondent after April 16, 1997, were solely to control their breach of contract with Claimant.

The amounts paid by Claimant to Respondent on or after April 16, 1997, total $2,212.46. Claimant failed to present any evidence as to the cost of his time and travel and therefore, his claim for those damages is denied. Claimant has failed to cite any authority upon which prejudgment interest could be awarded and the Court finds no such authority.

Claimant filed a veterinary malpractice claim and a breach of contract claim. After trial, Claimant filed a Motion for Additional Damages wherein he seeks damages for false representation, fraudulent concealment, and fraudulent representation. These claims were not timely filed and are denied. These are separate causes of action which were not properly plead.

This is a sad and difficult case. No monetary award can bring back Dirty Red to Claimant. No amount of money could satisfy Claimant's loss. There is also no question that Dr. Kitchell is a caring, veterinary oncologist. However, she was not present on April 16, 1997, when the Claimant's dog was not treated properly. It is the Court's desire that this Opinion will cause the Respondent to do a better job of charting and that a constructive end will come from this case.

For the foregoing reasons, Claimant is awarded the sum of $2,212.46 in full satisfaction of his claim.

FREDERICK, J.