The Care and Worth of Animals*
Virtually every custodian of a companion animal can relate a story about how a veterinarian provided quality care, cured a problem, even saved a life. In most of our experiences, we’ve found veterinarians to be capable, empathetic, and conscientious.
However, just as the media is replete with horror stories about negligent and intentional conduct by some members of most trades, professions, and callings—from plumbers to lawyers to priests—of particular distress to the custodians of companion animals are reports of harm done to them by veterinarians.
Given what is now known about the emotional aspects of the human-animal bond, and the empirical experiences of that bond by the millions of companion animal caretakers, it is not surprising that when a veterinarian is thought to have negligently or intentionally harmed a pet, the custodian seeks some kind of recourse. Often a complaint is made to the licensing authorities or the Better Business Bureau. Sometimes, print advertisements are placed, reporting what the veterinarian did, or did not do. Rarely, angry clients even picket their [former] veterinarians’ offices. Mostly, however, the reaction of choice is a lawsuit—not to recover damages for their own sake, but to expose the veterinarian’s conduct, to prevent harm to future patients, and to punish him financially.
Once virtually unheard of, in the past two decades the number of civil lawsuits brought against veterinarians for negligent or intentional harm to companion animals has soared. Various reasons have been proffered 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 causes of action, 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 to companion animals.
But to say that “the number of civil lawsuits brought against veterinarians for negligent or intentional harm to companion animals has soared,” is not to say that such litigation is succeeding. In fact, despite the occasional anecdotal story that makes the wire services and a few seconds of mention 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 veterinarian so he’ll be more careful next time. In other words, behavior modification through pain—specifically financial.
The tactic is a good one, but it has been mostly unsuccessful. Even if a veterinarian is found liable in a contract, tort, or other civil action, due to his negligence (let alone intentionally harmful conduct), the damages are usually inconsequential because of the legal status of companion animals and their perceived lack of value to their custodians. Because of these two disabilities—animals as mere property, and their worth calculated as virtual inanimate objects—the cost to veterinarians of civilly wrong behavior is virtually nil.
If the veterinarian has the usual professional liability (malpractice) insurance, his carrier, not the veterinarian, will cover the costs of the defense, even if the complaint pleads intentional conduct. (The insurer will simply reserve its rights as to non-covered damages). If the plaintiff proves liability under the policy’s coverage, the carrier will pay, not the veterinarian.
But even if there is no insurance, or a non-covered liability is imposed, the damages will be relatively small. And to the extent that damages for the negligent or intentional harm to companion animals is minimal, there is less an incentive for a veterinarian (or anyone else, for that matter) to exercise the appropriate level of care.
It is a truism that generally people are careful in direct proportion to their assessment of, and willingness to incur, risk. Most lawyers will be careful and not wait until the last day to file a notice of appeal, because of the disastrous consequences from a malpractice suit. If the lawyer has professional liability insurance that pays a claim arising out of failure to timely file a notice of appeal, if any carrier will insure him next time it’s likely his premium will be higher.
But this disincentive of non-renewed coverage, or coverage at a higher premium, does not affect veterinarians. If they are not renewed (forced to “go bare”) and are found liable, the award will usually be modest. If they have coverage and lose, the carrier will pay the judgment and the increased premium will be negligible. Indeed, as Christopher Green, Esq., notes in his seminal article “The Future of Veterinary Malpractice Liability in the Care of Companion Animals,” 10 Animal Law 163, 174-175 (2004), “[t]he price of liability coverage for veterinarians has not risen once in over a decade and premiums actually dropped in each of the two prior years. This means that veterinarians are now paying less for their malpractice coverage than they were 14 years ago. If one further adjusts for inflation, the average price of veterinary liability insurance is now 44% lower than in 1989 - an effect verified by the country's largest veterinary liability insurer who reports that it collected the same total dollar amount in premiums from the 42,000 verterinarians it insured in 2001, as from the 26,000 it insured ten years eariler." (Footnotes omitted; emphasis in original).
As to the cost of that insurance, Green reports that “[i]n 2003, basic liability coverage for a companion animal veterinarian still costs only $147 per year. For a scant $41 more, small animal veterinarians can boost their policy to the highest coverage tier of $1,000,000 per claim and $3,000,000 in total annual claims—a ten-fold increase in protection for a total premium price of only $188 per year.” (Green, at 175).
Why is this insurance so inexpensive? The answer is obvious: the handful of awards in companion animal cases have been nowhere near those liability limits. Nor will they be 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 antediluvian notions about companion animals and their human caretakers.
For example, a couple years ago one of New York’s appellate divisions (the state’s intermediate appeals court) decided a case entitled Lewis v. DiDonna, 294 A.D.2d 799, 743 N.Y.S.2d 186 (2002). A pharmacist labeled with the wrong dosage a prescription for plaintiff’s dog, who died as a result of the negligence. On appeal, the five-judge appellate court had occasion to address the trial court having allowed plaintiff “to introduce proof of loss of companionship”: “Pets,” all five judges ruled, “are recognized as personal property . . . and damages for the loss of a pet are limited to the value of the pet at the time it died . . . which are ordinarily proven by establishing the market value of the pet, if it has one, or, if there is no market value, by such factors which tend to fairly show its value.” Cited in support of this “animals as property” principle was an 1881 case in the highest court in New York. Ironically, the decision upheld a conviction for stealing “property”—a dog. But while the “animals as property” principle was what upheld the conviction, the 2002 Lewis v. DiDonna court should have read further into the 1881 case:
The reason generally assigned by common-law writers for this rule as to stealing dogs is the baseness of their nature and the fact that they were kept for the mere whim and pleasure of their owners. When we call to mind the small spaniel that saved the life of William of Orange and thus probably changed the current of modern history . . . and the faithful St. Bernards, which, after a storm has swept over the crests and sides of the Alps, start out in search of lost travelers, the claim that the nature of a dog is essentially base and that he should be left a prey to every vagabond who chooses to steal him will not now receive ready assent.
There are animal rights/welfare activists who believe, with some reason, that the solution to the “animals as property” attitude, and its consequence of imparting a negligible value to their wellbeing and lives, is through legislation. Indeed, some legislatures, albeit few, have seen the light and enacted various laws relating to causes of action and measure of damages.
Others believe that the solution lies in the courts, by encouraging them to fashion common law remedies, both as to causes of action and measure of damages.
Each is correct, but only up to a point. While legislative and judicial reform can result in a demise of the “animals as property” principle and accord companion animals and their custodians the legal protection they deserve, and so much need, we must ask what will cause that reform. The answer is a simple one: a cultural and social change in thinking about the nature of companion animals, and their importance to the wellbeing of their human friends.
* ISAR’s sixty page monograph entitled “Harming Companion Animals: Liability and Damages” makes clear that veterinary malpractice and intentionally harming companion animals is widespread, but most people and attorneys know little or nothing about the subject. Furthermore, the law of intentional and negligent harm to companion animals reflects a devaluing of them – the same devaluing that makes possible today’s horrendous problem of millions of unwanted companion animals being put down annually.