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2-9-2009; Pages 6-9

Mr. Evans - defendants Golub and Valente's attorney
Mr. Cunningham - plaintiff U.C. Regents' attorney

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.  I would

 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.