18 MR. EVANS: Two points. One, I will be talking
19 about it being below the standard of care, but the focus
20 of why it's below the standard of care is in terms of my
21 ability to present evidence. In other words, it's a
22 situation where I am hampered by their record keeping in
23 the evidence I'm able to put forward. And my
24 veterinarian, my expert is going to say look, these
25 records have been unlawfully and below the standard of
1 care altered. So that information that would normally be
2 there is not there. And in addition, information that
3 would have to do with this surgery that would talk about
4 risks and complications that a reasonable veterinarian
5 would put in the record, it's not in the record. So --
6 THE COURT: So you're trying to say that the
7 contract itself was flawed because they were not advised
8 of the risks prior to --
9 MR. EVANS: Yes.
10 THE COURT: Mr. Cunningham, can you speak to
11 this? We're talking about the formation of a contract, I
12 think is where you're going. Correct, Mr. Evans?
13 MR. EVANS: Yes, informed consent. And that's
14 what my expert is going to talk about. When you do a
15 procedure as a standard of care you write down certain
16 risks in the records, and by detailing those risks it
17 identifies and permanently locks it in the record what
18 they disclosed to the client, and then you know the the
19 clients response to those risks. And by them not being
20 there the inference is that it didn't happen.
21 THE COURT: Cunningham, let me just say before
22 you respond again, we're talking about a court trial, so
23 I'm allowing a little more leeway.
24 MR. CUNNINGHAM: I understand, but I'm still
25 concerned because he's talking about record keeping
1 requirements that don't apply as a matter of statutory law
2 to the VMTH. I mean, how can he testify about
3 requirements that you maintain certain records if VMTH is
4 exempt from those requirements?
5 THE COURT: Mr. Evans?
6 MR. EVANS: Well we can talk about that.
7 agree if he can prove as a legal matter that they are
8 completely exempt then it would be very difficult to talk
9 about them being legally required. I could still talk
10 about the standard of care of any veterinarian treating
11 any patient, and their duty to disclose certain risks,
12 regardless of whether VMTH is bound by some certain law.
13 THE COURT: Okay. It seems to me that what we're
14 talking about here is whether or not there was informed
15 consent in the formation of a contract. So are there
16 specific rules, Mr. Cunningham, that would relate to this
17 contract even though it involves the VMTH?
18 MR. CUNNINGHAM: No, Your Honor. Not that I'm
19 aware of.
20 THE COURT: So you're saying that the VMTH
21 doesn't have to abide by normal rules that provide for
22 informed consent , if I understand you correctly.
23 MR. CUNNINGHAM: I'm saying they are exempt of
24 all the rules under the California Medical Veterinary
25 Practices Act. That's what I'm saying. They don't even
1 have to be licensed in California.
2 THE COURT: But does that mean if someone takes
3 their animal to the VMTH and they are not told any risks
4 at all of surgery that that's okay under the statute?
5 MR. CUNNINGHAM: Under the statute, that's okay.