“Harming Companion Animals: Liability and Damages”

i May 7, 2008

Last March, this Blog made brief mention of a monograph that ISAR has prepared for complimentary distribution, Harming Companion Animals: Liability and Damages. Because of the importance of the subject, we’re going to expand on that mention today.

Too often, especially with the advent of the Internet, advice is sought from ISAR by the custodians of companion animals about harm done to them by veterinarians through misdiagnosis, prescribing the wrong medicine, operating unnecessarily or not at all when they should, and committing every other kind of malpractice imaginable. We also receive heartbreaking reports of intentional acts of cruelty perpetrated against companion animals: dogs shot by neighbors, cats stoned by teenagers, horses maimed by sadists.

The media exposure now being given to the harm being visited upon companion animals understandably causes nightmares for their custodians, who live in fear their animals may be the next victims.

Given what is now known about the emotional aspects of the human animal bond, and how the millions of companion animal caretakers experience that bond, it’s not surprising that when harm is caused the custodian seeks some kind of recourse.

Often a complaint is made to prosecutors, the licensing authorities, or the Better Business Bureau. Sometimes newspaper announcements are placed, reporting what the wrongdoer did, or failed to do. Mostly, however, the reaction of choice is a lawsuit—usually not to recover damages for their own sake, but to expose the wrongdoer’s conduct, to prevent him from harming any animals in the future, and/or, sometimes, to punish him financially.

Once virtually unheard of, in the past two decades the number of civil lawsuits arising out of harm to companion animals has soared. Various reasons have been given for this phenomenon, among them the information explosion, a more litigious culture, a burgeoning literature on the subject, more lawyers willing to take such cases, the development of new theories on which to sue, a greater awareness of the importance of companion animals to their caretakers’ quality of life, and a greater willingness on the part of legislatures and courts to treat seriously the harm done to companion animals.

But to say that “the number of civil lawsuits arising out of harm to companion animals has soared,” is not to say that the litigation is succeeding. In fact, despite the occasional anecdotal story that makes the news-papers and a sound bite on local TV news, much of the litigation is not succeeding—not if success is measured by achieving the lawsuits’ primary goal: imposing a financial penalty on the wrongdoer so that his conduct will be deterred.

This is especially true of litigation triggered by veterinary malpractice, which is without question the source of most harm to companion animals.

Tactically, suing for veterinary malpractice is a good idea. But even if a veterinarian is found liable in a civil action, the damages are usually inconsequential because of the legal status of companion animals and the judicial system’s indifference to the value companion animals have to their custodians. Because of these two disabilities—animals as mere property, and their worth akin to inanimate objects—the cost to those who harm
companion animals is virtually nil.

In a malpractice case, if the veterinarian has the usual professional liability coverage, the insurance company, not the veterinarian, will pay the costs of the defense. If the plaintiff proves liability, the insurance company will pay, not the veterinarian.

But even if there is no insurance, or liability is imposed for conduct that the insurance does not cover (e.g., an intentional act), the damages the veterinarian has to pay will be relatively small. And to the extent that damages for harm to companion animals is minimal, there is less an incentive for a veterinarian and his staff to exercise the appropriate level of care.

It is a truism that generally people exercise care in direct proportion to their assessment of, and their willingness to incur, risk.

Most lawyers will be careful and not wait until the last day to file a notice of appeal. They appreciate the risk of disastrous consequences from a malpractice suit, if the notice of appeal is “out of time.” If the lawyer has malpractice insurance that has to pay a claim arising out of failure to timely file a notice of appeal, if he can even get malpractice insurance afterwards the company will likely raise his premium and his deductible.

But this disincentive to sloppy professional work because of either non-renewed coverage, or coverage at a higher cost, does not affect veterinarians. If their malpractice policies are not renewed and they are later found liable in a later case, the damages will usually be modest.

If veterinarians do have coverage and lose a malpractice case, the insurance company will pay the judgment and the increased premium, just as the initial premium, will be negligible.

Why is veterinary malpractice insurance so inexpensive?

The answer is obvious: The handful of awards in companion animal veterinary malpractice cases have been nowhere near the available policy liability limits because, since companion animals are considered mere “property,” their custodians cannot recover damages for their emotional loss, and pain and suffering, caused by the negligence or intentional harm.

Thus, as a practical matter, the insurance companies have little or no financial risk—especially if the award is within the policy’s deductible limit, which the insured veterinarian will invariably pay himself.

Damage awards will be nowhere near the available policy limits until our culture, legal and social alike, changes its basic attitude toward the nature of companion animals and their value to their human caretakers—an attitude rooted in outdated notions about both.

In the meantime, because the necessary change in values has not yet occurred, ISAR frequently receives reports of veterinary malpractice and intentional harm done to companion animals. Because these requests for information about what can be done to right these wrongs have so grown in number, it is no longer efficient for the ISAR to respond to them individually. Accordingly, ISAR has prepared Harming Companion Animals: Liability and Damages, an extensive monograph for complimentary distribution.

ISAR’s monograph is intended to be, and should be understood as, only educational in nature. It is not intended to constitute, and should not be considered, legal advice generally or for any individual situation in particular. When confronted with a legal problem regarding negligent or intentional harm to a companion animal, there is no substitute for face-to-face, fact-specific advice obtained from one’s own attorney. Accordingly, ISAR urges anyone with a potential or actual problem of this kind to consult a lawyer.

Moreover, Harming Companion Animals: Liability and Damages is not intended to be a comprehensive statement of the law on that subject. Its modest goal is to present merely general statements of the principal legal categories, using a single example to illustrate each.

Specifically, Harming Companion Animals: Liability and Damages focuses on the nature and scope of wrongdoers’ liability and the damages that may be recoverable from them. The monograph’s methodology is to present brief but thorough explanations of the applicable principles of liability and damages, and then to illustrate them by the use of extensive quotations from actual cases.

Although the monograph has not been written primarily for lawyers, the information contained in it should be of considerable value to them, especially our use of actual cases and our extensive bibliography, which includes:

• Law review articles.
• Law review notes.
• Book reviews.
• Books.
• International resources.
• Journals.
• Magazine articles.
• Miscellaneous resources.
• Newspaper articles.
• Online resources.
• Pending legislation.
• Unsuccessful bills.
• Currently existing statutes.
• Recently reported cases.

Complimentary copies of Harming Companion Animals: Liability and Damages may be obtained through our website, www.isaronline.org.

The monograph consists of two major parts. Part I deals with “liability” resulting from wrongful conduct. Someone must have done something either negligently or intentionally (or even through breach of contract) to cause harm to a companion animal. If there is liability, the second question, dealt with in Part II, is: what are the “damages”?

A final point: Even though most of the harm to companion animals results from
veterinary malpractice, Harming Companion Animals: Liability and Damages
should not be taken as a criticism (let alone a condemnation) of all veterinarians.

On the contrary.

Although among the thousands and thousands of veterinarians in the United States there are some bad apples—just as in the medical, legal, and all other professions—the vast majority of veterinarians and their staffs are caring, dedicated, competent, healers who feel deeply about the animals they treat. For them, all of us who share our lives with companion animals are eternally grateful.