If the veterinarian does not admit his or her error, another expert opinion must be obtained, confirming the treatment and/or diagnostic mistake. The legal position of the veterinarian is very similar to that of the human doctor. Basically, the same liability principles apply.
The contract between the owner and the veterinarian is an order in the sense of Art. 394 ff. OR. The content of the order is usually a general examination of the health condition of the animal, the making of a diagnosis as well as the consultation of the animal owner, if a therapy or an operation of the animal should be necessary.
The performance of the therapy or operation constitutes a contract performance in the narrower sense. Only in exceptional cases does a contract for work and services exist (Art. 363 ff. OR), namely when the veterinarian performs a very specific activity and promises a corresponding success, for example when taking an X-ray or performing a vaccination. In the absence of success, the veterinarian may be obliged to improve his work free of charge or to reduce his fee.
According to Art. 398, para. 2 of the Swiss Code of Obligations, the veterinarian is liable to the animal owner for the faithful and careful execution of the business entrusted to him.
As the holder of a state certificate of competence, the veterinarian is obliged to observe a particularly high degree of care and fidelity. Even if he is in principle not liable for the success of an intervention, he must nevertheless be familiar with the generally accepted principles of veterinary science that have become common practice and, using all the rules of the art, make a diagnosis and order a treatment that corresponds to the diagnosis made. As a specialized veterinarian, he is obliged to continue his education and to inform himself about the progress in science, as far as this is possible by means of professional journals, new textbooks and also conferences.
Furthermore, the duty of loyalty applies, according to which the veterinarian not only does what is necessary, but also does everything to achieve the success of the order and in particular also refrains from doing anything that causes damage, namely financial loss, to the client. Accordingly, the duty of loyalty also includes not prolonging a treatment without purpose in order to earn a higher fee. The veterinarian is financially liable for the damage caused as a result of a culpable breach of the duty of care and loyalty, both under contract law (Art. 398 CO) and extra-contractually (Art. 41 CO).
The liability of a veterinarian presupposes a gross violation of the generally accepted rules of the art of healing. In principle, the veterinarian is only liable for inexcusable errors, actual malpractice or objectively unnecessary treatment. Slight oversights are hardly punished under civil and criminal law.
The damage consists of the acquisition value of the animal that died because of the intervention.
Furthermore, the so-called affection value, i.e. the emotional value that the animal had for its owner, is also taken into account in the assessment of damages (Art. 42 para. 3 OR).
Whoever wants to prove a violation of the duty of care to a veterinarian, in case the animal has died, must have the animal examined. This should be done, for example, by the cantonal veterinary hospital. From this, indications of any malpractice can be deduced. Then the conversation with the veterinarian should be sought. If this is not successful, contact can be sought with the president of the cantonal veterinary association. The Society of Swiss Veterinarians in Bern will gladly provide the address of the respective president. If even then no agreement is reached with the veterinarian, the chances of a possible civil suit against the veterinarian would have to be examined.