Veterinarians: Liabilities Lurk In Consignor-Furnished Radiograph Reports At Sale by Natalie Voss|12.01.201612.07.2020|11:10am5:13pm For many buyers, part of looking over a potential sales prospect at auction these days automatically includes a stop at the consignor's table to see a radiograph report on the horse in question. When veterinarians provide a set of radiographs, they include a report of their findings to the horse's owner, describing the location and nature of any findings — chips, unusual differences in bone density, growth-related changes or trauma. Sellers are required to submit radiographic images to the sales company's repository before the horse can go through the ring, but in recent years, they've begun offering the findings report at the barn and in the back ring as a marketing tool to potential buyers. As this practice has become industry standard, some veterinarians and consignors have become increasingly worried the situation is a lawsuit waiting to happen. Consignors expressed concern in 2012 when Keeneland and Fasig-Tipton changed the wording of their conditions of sale, giving buyers 24 hours to return a horse whose radiographs or radiograph report were found to be misleading. Veterinarians, they argued, felt compelled by the new condition to write short novels on their radiographic reports. The vets' concerns about clarity resulted in reports so detailed and laden with technical information, consignors feared buyers were being scared off by the amount of text on the page – especially if they weren't familiar with the terminology they saw. Now, some sellers say their concerns have quelled with time. “I think [more disclosure] has improved things because people trust what they're seeing,” said Sandy Stuart, sales director, Bluegrass Thoroughbred Services. “I guess they now have an avenue that then incentivizes them to start understanding. They're like, 'Ok, we can at least trust it, so we can start to understand what this stuff means.'” Consignors still believe (as they seemed to in 2012) the issue becomes a bigger problem later in large auctions like Keeneland September. At the beginning, buyers are using the reports the way consignors originally intended: to get a preview of what their own veterinarian would be likely to find when they were sent to examine the horse's x-rays independently. Later in the auction, however, consignors say buyers are more likely to make a decision about the horse's suitability by reading seller-provided reports instead of paying a veterinarian to issue an independent opinion. “It's dictated by the price,” said Francis Vanlangendonck, owner of Summerfield Sales. “Somebody buying at this [Book 1] level, they're going to buy X number of horses and they're going to spend the money and that's fine. But if you get into the second week and somebody has a budget, they want to spend $50,000 and buy three horses, they can't spend $20,000 on vet work, so they've got to go off the sheets and handicap whether it's accurate or not.” The average cost of reviewing repository radiographs is $100 to $125 per set, depending on the veterinarian. Vets will often re-review a set upon receiving multiple requests from different buyers because those individuals may have different tolerance for different findings. Sellers are aware veterinarians sometimes disagree with each other's findings, further complicating the prospect of relying on one another's opinions. They also have varying takes on what will and won't impact a horse's race career. Stuart pointed to two Grade 1 Bluegrass Thoroughbred graduates whom he remembers failing veterinary exams before sale. They were ultimately purchased by buyers who didn't have them independently examined. That kind of attitude worries many veterinarians working at public auctions. For one thing, they say the report prepared by a veterinarian for a seller can't possibly take into account what constitutes a “significant” or “insignificant” finding to a particular potential buyer. Some buyers are hoping to turn a yearling around for a 2-year-old sale in a matter of months, while others are looking at the horse as a long-term investment on the racetrack. Those very different priorities can and should color a veterinarian's take on what he sees in the images, but the veterinarian writing the radiograph report for the seller can't control how his report will be interpreted, or by whom. A guide published by the Consignors & Commercial Breeders Association (CBA) advises buyers not to rely solely on the reports furnished by the sellers and to hire their own veterinarian to read the actual images instead. “A radiographic report at the sale is not like a CARFAX,” the guide reads. “These reports are by nature subjective and, as such, only have meaning in the context of a vet-client relationship where both parties clearly communicate and understand the level of risk and intended use. “Furthermore, to date there has been no standard established for which findings are reportable and which aren't. The notations “no significant findings” and “no significant abnormalities” on these reports are problematic because their significance is in the mind of the individual reviewing the radiographs.” To further complicate matters, experts don't always agree about whether certain issues are indeed present in radiographs. In 2015, the Paulick Report reported on a study in which veterinarians disagreed about whether certain defects like osteophytes and irregular vascular channels were present in a set of X-rays as much as 60 to 70 percent of the time. Dr. Jeremy Whitman, partner at Equine Medical Associates in central Kentucky, sees concerns about language in the reports as a big incentive for veterinarians to “soften” their findings. “That's something that gets repeated, they needed this 'sales tool,'” he said. “It's only a sales tool if there's nothing wrong with the horse. If there's anything on there, then it's not a very good sales tool, unless you can find someone to expunge findings. And unfortunately, our profession gets inundated with those requests. And when you ask and put money out in front of it, you'll find people who will do it.” After the 2010 Keeneland September sale, a 10-veterinarian panel surveyed 392 sets of radiograph reports. The panel found “significant findings” were, almost 50 percent of the time, absent or underreported in radiograph reports. There were also instances in which veterinarians thought the consignor reports made a little too much of a given finding. There was no pattern to which consignors or veterinarians were more likely to furnish these contradictory reports, dispelling the notion “a few bad apples” could be responsible for the trend. Trainer Dale Romans, who consigns horses at auction and also purchases for clients, said he's not excessively worried about legal liability, but it's important for buyers to protect themselves by doing their homework. In the latter part of the sale, Romans said he's more likely to look at horses in the back walking ring, rather than going through the entire book and making a short list ahead of sale day. While he asks consignors to see their reports, he also relies on a veterinarian posted in the repository to do an independent check of a horse's radiographs before he actually begins bidding on the horse. “I'll look at it and if it's bad I won't even call my vet, and if it's good, I'll trust but verify,” said Romans, who said he has yet to encounter a report in the back ring he believed to be dishonest. “There are some guys I've bought so many from them, I don't have to verify, but I do anyway. “If there's something written there, it's opinion as to what it's going to do, how long it's going to last. If something's written there, you should check it. And there are certain areas in a horse that are more important to me to check than others – knees are more important to me than hocks, sesamoids are something we want to check closely.” Veterinarians say none of this changes their legal liability as the authors of radiograph reports, if a buyer did want to take a bad purchase to court. If a buyer purchases a horse based on a seller's radiograph report and later discovers an issue he considers significant or an issue which makes the horse a poor investment for his particular purposes, the author of that report could be sued. The fact the buyer was using the report “incorrectly” in the veterinarian's view wouldn't be enough to get the practitioner off the hook. Since at least 2011, a vocal group of veterinarians, the American Association of Equine Practitioners, and several consignors have petitioned auction houses to discourage the use of such reports but have remained unsuccessful. Whitman has spoken to a number of consignors who similarly want to abolish the reports, but said if they stop showing them, buyers will get suspicious and take business elsewhere. “The problem is, the people who want to get rid of it don't have a good avenue to do it,” he said. “They can't be the only one up there making a stand. It'll cost them hundreds of thousands, maybe millions of dollars to do it.” It would take a sale-wide mandate that no reports be present in the back ring in order for consignors to feel comfortable letting them go, Whitman believes. So far, his colleagues doubt any such mandate is imminent. Consignors are hopeful a solution could lie in future research. Joe Seitz, director of sales at Brookdale and president of the CBA, pointed to a project at Colorado State University studying long-term impact of sesamoiditis and stifle OCD lesions on a horse's race career. With any luck, if those common findings are discovered to have no impact on long-term success, their reporting or non-reporting will be less of a legal conundrum. “We're looking forward to the results of these studies because that will enable buyers and sellers and veterinarians to learn exactly what type of veterinary findings are significant to racing,” said Seitz.