2011 QCCQ 4902, 2011 QCCQ 4902

Popovic c. Hôpital vétérinaire de l'Église 2011 QCCQ 4902 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-115713-093 DATE: May 12, 2011 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ SUZANA POPOVIC […] Verdun, Quebec […] Plaintiff vs.

HÔPITAL VÉTÉRINAIRE DE L'ÉGLISE 527 Ave De L'Église Verdun, Quebec H4G 2M7 -and- LA CAPITALE ASSURANCES GÉNÉRALES 425 de Maisonneuve West, Suite 500 Montreal, Quebec H3A 3G5 Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Suzana Popovic had her dog, a boxer named Ace, treated at the Hôpital Vétérinaire de l'Église ("Hôpital").

She sues that establishment for damages in the amount of $1,332.76 alleging that, through Hôpital's fault, Ace contracted kennel cough during his stay at the facility for a routine castration which was completed October 17 th , 2008. [ 2 ] Ms Popovic also complains about the manner in which the Defendant's veterinarian, Dr. Denis Dubé, treated the dog when she brought it back to the facility for treatment of the cough it on October 27 th . Dr.

Dubé simply prescribed an antibiotic, Novolexin, without any more elaborate treatment. [ 3 ] Ms Popovic alleges that she had to rush the dog to another animal hospital that same day where the dog was interned and treated and subsequently released August 31 st , 2008. [ 4 ] Ms Popovic's claim includes the fees paid to Hôpital and to the other animal hospital as well as the costs of medication. [ 5 ] The liability insurer of Hôpital, La Capitale Assurances Générales inc, was inpleaded and admitted at the hearing that the claim was covered, fell within the limits of the policy, and that there was no applicable deductible.

ISSUE [ 6 ] The Court must determine whether Hôpital, through the acts or omission of its veterinarian, Denis Dubé, has liability to Ms Popovic with regard to its treatment of Ace. And, if so, determine the amount of damages required to repair the loss.

FACTS [ 7 ] Ms Popovic makes no claim with respect to the quality of the services rendered by Hôpital in respect of the castration treatment. [ 8 ] Within of few days after she recovered Ace on October 17 th 2008, it contracted a cough; it seemed not to be eating or drinking well. Ms Popovic decided to return to the Defendant's facility on October 27 th so that Ace could be treated. [ 9 ] Coincidentally, this was also the day for the dog's stitches to be removed from the previous procedure. [ 10 ] With respect to the coughing, Ms Popovic's recollection is that Dr.

Dubé denied that the dog could have caught the condition, referred to as kennel cough, at his facility, because it takes at least two weeks from contact for the symptoms to develop. The symptoms developed only a few days after the dog left the facility; he must have contracted the infection previously. [ 11 ] Dr. Dubé denies having made such a statement. He testifies that the symptoms normally develop between four and eight days of contact.

He does, however, feel that it is unlikely that the dog developed the illness through contact with other dogs his facility because no boarders are kept there and no other case of kennel cough was reported with animals present at the facility during that period. [ 12 ] Kennel cough is a common infection due to viruses. The standard procedure is to treat the animal preventatively with an antibiotic to inhibit any secondary infection of a bacterial nature, which could cause pneumonia. [ 13 ] When Dr.

Dubé examined the dog, he detected no problem of dehydration and, in his opinion, it was appropriate to prescribe the antibiotic Novolexin and to discharge the animal to the owner's care. [ 14 ] Ms Popovic feels that Dr. Dubé lied to her and feels certain that the dog must have contracted the kennel cough while at the Defendant's facilities. [ 15 ] She filled the prescription for Novolexin and started giving it to Ace but, the same day, brought the dog to the Hôpital vétérinaire Taschereau, in Greenfield Park, where Dr. Richard Allen was on duty. [ 16 ] Dr.

Allen testified that he diagnosed the dog as having kennel cough with a secondary bacterial infection. [ 17 ] This diagnosis was provisional, which is to say uncertain, as he did not proceed to any laboratory testing to confirm it. [ 18 ] Dr.

Allen prefers the antibiotic Amoxil to Novolexin, which he typically uses for other problems, such as skin infections. [ 19 ] After hospitalizing the dog, he provided intravenous for hydration and administered a bronchodilator, Apo-Theo, as well as a cough suppressant, Torbutrol. [ 20 ] The dog's condition improved and it was released on October 31 st with a continuation of medication and a prescription for continued rest. [ 21 ] Although there is some question that the dog may not have been eating and drinking properly, Dr. Allen's notes of October 27 th 2008 in the file indicate appetite and stools as normal.

Under the headings relating to hydration, the indication is « RAS (rien à signaler) ». In fact, during the general examination, nothing is considered worthy of mention, the indication RAS being used throughout. [ 22 ] Dr. Allen does not fault Dr. Dubé for prescribing Novolexin instead of Amoxil or Ampicilline, it is simply a question of his preference. [ 23 ] Dr. Dubé, in response, was rather critical of Dr.

Allen's approach in prescribing a cough suppressant which, according to him, is counter-indicated in cases of kennel cough where productive coughing is appropriate to clear the breathing passages. [ 24 ] He adds that no harm was done if it was simply a case of kennel cough without a secondary infection. [ 25 ] Dr. Dubé maintains that Novolexin is the more appropriate antibiotic in this case. [ 26 ] Dr. Dubé also points to the fact that no dehydration was detected in Dr. Allen's examination as an indication that it was not necessary to immobilize the dog and provide in with intravenous fluids.

ANALYSIS [ 27 ] It is understandable that an owner will become upset when her animal is sick, especially if it is possible to make an association between the illness and the presence of the animal in a veterinary facility. [ 28 ] The association is possible in this case but it is also possible that the dog contracted the cough by contact with other animals either in the waiting room of the facility or while at play.

Even if the illness was contracted at the facility, there is nothing to suggest that this was the result of a non-sanitary or other condition for which the operators of the facility are responsible. [ 29 ] The decision by Ms Popovic to sue the Defendant seems to be related chiefly to her feeling that she was lied to: that the Defendant, through Dr. Dubé, tried to conceal its connection with her dog's infection. She complains that she was not given, free of charge, whatever treatment the dog required.

[ 30 ] Obviously, she believes the more intensive treatment provided by Dr. Allen would have been more appropriate than simply prescribing an antibiotic and releasing the animal to her care. [ 31 ] The evidence, however, is not sufficient to support such a claim. The main difference between the treatments provided by Dr. Dubé and those given by Dr. Allen is that Dr. Allen decided to immobilize the dog and to induce fluids intravenously.

His diagnostic, however, did not necessarily support this treatment because he makes no mention of the dog being dehydrated. [ 32 ] His choice of antibiotic is, admittedly, a question of personal preference and it seems that he could be open to criticism for prescribing a cough suppressant.

If the animal indeed had a bacterial infection giving rise to pneumonia, which is far from clear, this may not have been the best of ideas. [ 33 ] Having heard two conflicting testimonies from the two veterinarians, the evidence is, at best, contradictory and non- conclusive. [ 34 ] The Court of course sympathizes with Ms Popovic's stress and her sense of injustice at the way she felt she was treated but, in the Court's view, this is more a question of marketing on the part of the Defendant and not, on the basis of the evidence heard, a case of professional negligence or even ordinary contractual fault. [ 35 ] It has not been established, on a medical basis, that the Defendant committed any fault in respect of its treatment of the animal.

It is more a question that the sensibilities of the owner were offended, perhaps because of the misunderstanding as to what Dr. Dubé meant when he failed to admit that the dog contracted the kennel cough at his facility. [ 36 ] Given the emotions involved, this is not a case for the imposition of judicial costs. FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff's action in respect of Hôpital Vétérinaire de l'Église; DISMISSES the proceedings in respect of La Capitale Assurances Générales inc.; THE WHOLE , without costs. __________________________________ DAVID L. CAMERON, J.C.Q.

Dates of hearing: March 8, 2010 and April 19, 2011