GPSOLO July/August 2009
Non–Economic Damages In Pet Lawsuits
Americans love their pets—and for good reason. They give us joy, provide companionship, and are a source of unconditional love. Then there are the well–documented health benefits. People with pets have lower blood pressure, better cholesterol levels, and visit the doctor less often. Sixty percent of U.S. households own pets, including more than 150 million dogs and cats.
Veterinarians understand and appreciate this human–animal bond. After all, love of animals is what drove veterinarians to their chosen profession. They also recognize that many people who enjoy the companionship of a pet do not think of their animal as “property” but rather as a unique, living being. What’s wrong then with taking the next step and recognizing an owner’s claim for pain and suffering, emotional distress, loss of companionship—in short “non–economic” damages—arising from a wrongful pet loss in cases of professional negligence?
As pet owners, we empathize with those whose pets have been harmed. We, too, are heartbroken when something bad happens to our own beloved pets. But as lawyers and veterinarians, we need to guard against a drastic change in the law if it will result in serious, unintended negative consequences. In our view, allowing non–economic damages will harm the very animals we seek to protect.
Courts and legislatures have consistently rejected non–economic damages in regard to animals, with rare and carefully targeted exceptions. For example, an Illinois law allows such damages in cases of aggravated cruelty or torture. A Tennessee statute authorizes non–economic damages when a pet has been killed or fatally injured on the owner’s property or while under the control and supervision of the owner. Courts are more receptive to awarding enhanced damages where criminal or outrageous behavior results in injury or death of a pet. However, in actions where professional negligence is alleged, courts limit recovery to the replacement cost of the animal or allow additional measurable economic damages.
The American Veterinary Medical Association (AVMA) believes that in negligence cases involving animals, courts should take into account certain economic factors. These include:
- purchase price;
- age and health of the animal;
- breeding status;
- special training;
- veterinary expenses related to the incident in question; and
- any particular economic utility the animal has to the owner.
Under the current legal structure, veterinarians and other animal health providers give quality and affordable care to our pets, which are living longer and healthier than ever. One need not be wealthy to afford a pet in the United States—now. But that could change if we take the drastic step of overturning established legal doctrine in this area. We believe that extending available remedies beyond economic damages would be inappropriate and ultimately harm animals.
We contend that there are much better ways to honor the value of pets. As explained above, we favor recognition of measurable economic damages, even beyond fair market value or replacement cost, and support the awarding of punitive damages for intentional or criminal behavior that results in harm to an animal. Further, we support the idea of states adopting statutory language recognizing that animals are unique, living beings. Finally, we favor strong state veterinary medical boards to help ensure a robust disciplinary system to protect the public by weeding out those few incompetent or negligent practitioners.
In drafting the current Restatement of the Law of Torts, the American Law Institute recognizes that:
While pet animals are often quite different from chattels in terms of emotional attachment, damages for emotional harm arising from negligence causing injury to a pet are also not permitted. Although there can be real and serious emotional disturbance in some cases of harm to pets (and chattels with sentimental value), lines, arbitrary at times, that limit recovery for emotional disturbance are necessary.
Tort law balances a plaintiff’s right to compensation against public policy considerations. There are several compelling public policy reasons to limit awards to economic factors in animal litigation.
First, non–economic damages will increase the cost of veterinary services. Historically, the cost of veterinary liability insurance has been relatively stable. However, the number of lawsuits against veterinarians will certainly grow if the size of awards and settlements rises. Some pet owners and attorneys will see an incentive to file suits. The cost of liability insurance will rise, with the costs passed on to consumers. And keep in mind that the demand for veterinary care is more elastic than in human medicine. The AVMA’s pet demographics study shows that in 2006, 20 percent of consumers selected their veterinarian primarily on fees, while 17 percent of dogs and 36 percent of cats didn’t receive any veterinary care.
In today’s economic conditions, additional pressures on discretionary income could well result in millions of Americans deciding they simply cannot afford medical care for their pets. Low–income pet owners would be especially hard hit. Rabies, a major public health concern in many foreign countries, might become prevalent when rabies vaccinations are foregone because of rising costs. Abandonment rates are already on the increase as owners can no longer afford to keep pets. Animal shelters are overburdened and lack the resources needed to handle more animals.
Incidentally, the harm of non–economic damages would not be limited to the veterinary profession. The cost of all animal–related services and products—such as animal drugs, pet supplies, grooming, and boarding—would be affected. All pet owners could face increased liability if their pets got entangled with another person’s animal. Auto insurance rates would rise owing to litigation stemming from animals that run out into the road. Local governments, animal shelters, and animal rescuers all could face hikes in liability and insurance premiums. Even law enforcement officers might hesitate before protecting themselves or the community from threatening or loose animals.
Another concern is that, with the expected increase in lawsuits, veterinarians will be forced to spend more time on depositions, interrogatories, and other court proceedings rather than treating animals. We also expect veterinarians, like other health care professionals, to begin to practice more “defensive medicine,” performing treatments to avoid litigation. This will also add to the cost of veterinary care.
The specter of more lawsuits also will result in an erosion of the veterinary–client relationship, with a loss of trust on both sides. Studies have shown that consumers are pleased with their veterinarians and find them trustworthy and honest. Imposing an adversarial relationship will surely have an impact to the detriment of the animals we love.
Another unintended consequence of expanding non–economic damages is the fact that human–animal relationships would be elevated above many human–human relationships, a truly bizarre result. Recovery for negligent infliction of emotional distress is generally limited to very close relationships, such as spouses, children, or parents. Even then, restrictions such as the “zone of danger” rule have been created to place some reasonable limit to liability. Grandparents, aunts, fiancés, and friends generally cannot recover emotional distress damages, regardless of how close these individuals were with the deceased. Expanding non–economic damages to the human–animal relationship would deem it to be more important than those human–human relationships.
Non–economic damages have been routinely awarded in human medicine for several decades. Their impact on the practice of medicine has been troubling to say the least. Although the extent of the harm is debated passionately, it is our opinion that large recoveries have been a factor in the skyrocketing of health care costs.
As a first step toward achieving the expansion of damages in animal cases, some propose to cap or limit the amount that would be recovered for loss of a pet. Proposed caps have ranged from $5,000 to $25,000 per incident. However, caps may be raised. For example, the Tennessee statute contained a cap on non–economic damages in negligence cases of $4,000 when originally enacted in 2002. Within two years, that cap was raised by 25 percent to $5,000.
Some people contend that non– economic damages are needed to acknowledge that pets are special and valued by their owners in ways that are very different from inanimate types of property. The AVMA points out that state laws have recognized this fact for some time. Statutes in all 50 states protect pets from cruelty, abuse, neglect, and torture. These laws, which don’t apply to any other kind of legal property, serve as recognition that pets are living, unique, and special. We don’t believe there is any reason to make a drastic change in the existing tort system simply to make a symbolic statement.
Another argument frequently made in support for expanding damages is that they are needed to deter veterinary negligence. This ignores the fact that all state legislatures in the United States have created veterinary medical boards to discipline veterinarians where there is evidence of misconduct or incompetence. Given the sacrifices of time and money required to become a veterinarian, the risk of losing a license or having it suspended or restricted is a serious deterrent indeed.
Some argue that non–economic damages will bring the law in line with modern realities and wishes of the American public. In our experience, only a small number of animal rights activists and attorneys are pushing this issue. State legislatures consistently reject proposals to extend non–economic damages to lawsuits alleging veterinary negligence. The reason is that their constituents are pleased with the quality of services provided by animal care providers and do not believe that veterinary malpractice is a problem needing to be rectified through a solution that will increase the cost of caring for animals. This is a classic case of a solution looking for a problem to advance an ideological agenda.
The human–animal bond has grown and flourished under a legal system that, for 250 years, has not allowed for pain and suffering, loss of companionship, or any other type of “soft” awards for emotional or non–economic compensatory damages in animal litigation.
Allowing a claim for non–economic damages in order to provide considerable financial awards to a small number of pet owners and attorneys does not justify compromising the quality and affordability of the entire animal health care system. We think America’s pets are worth more than that.
James O. Cook, DVM, is the president of the American Veterinary Medical Association (AVMA) and owner of a mixed animal practice in his hometown of Lebanon, Kentucky; he may be reached at firstname.lastname@example.org. Adrian Hochstadt, JD, man-ages the AVMA’s State Legislative and Regulatory Affairs Department in its Communications Division; he may be reached at email@example.com. This article reflects solely the views of its authors, and not of the American Bar Association or of the General Practice, Solo and Small Firm Division.