Harming Companion Animals: Liability and Damages
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INTRODUCTION
Too often, especially with the advent of the Internet, advice is sought from International Society for Animal Rights from the custodians of companion animals about harm done to them by veterinarians through misdiagnosis, prescribing the wrong medicine, operating unnecessarily or not 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 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 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 newspapers 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 another 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 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”: 1
The 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 veterinarians it insured in 2001, as from the 26,000 it insured ten years earlier.
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.” 2
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, so, as a practical matter, the insurance companies have little or no risk—especially if the award is within the policy’s deductible, which the insured veterinarian pays himself.
Nor will awards be anywhere 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.
For example, a couple of years ago one of New York’s intermediate appeals courts decided a case entitled Lewis v. DiDonna. 3 A pharmacist mislabeled the dosage on a prescription for plaintiff’s dog, who died as a result of the negligence.
On appeal, the five-judge appellate court considered the trial judge’s ruling that allowed plaintiff “to introduce proof of loss of companionship”: “Pets,” all five appellate 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.” 4
Cited in support of this “animals as property” principle was an 1881 case from 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 nineteenth-century conviction, the 2002 LewisDiDonna court should have read further into the 1881 case, which somewhat tempered that view of companion animals:
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.
Still, in 1881 and in most states today, companion animals are considered personal property not the sentient beings that indisputably they are and that, we, their custodians, know them to be.
There are animal rights activists who believe, with some reason, that the solution to the “animals as property” mindset, and its consequence of imparting a negligible value to their wellbeing and lives, is through legislation. Indeed, as we shall see later in this monograph, some legislatures, albeit few, have taken a more modern view and enacted statutes enlarging the kinds of claims that can be brought for harm to companion animals, and by increasing the measure of damages for their injury or death.
Other people believe, equally well intentioned, that the solution lies in the courts, by encouraging them to fashion new remedial rules as to the kinds of claims that can be brought and increasing the measure of damages.
Each camp 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 desperately need, the question is: what will cause that reform?
The answer is a simple one: in the long run, only a cultural and social change in thinking about the nature of companion animals, and their importance to the wellbeing of their human friends.
In the meantime, because the necessary change in thinking has not yet occurred, Institute for Animal Rights Law almost daily receives reports of veterinary malpractice and intentional harm done to companion animals. Because the requests to us for information about what can be done about these wrongs have so grown in number, it is no longer efficient for the Institute to respond to them individually. That is why, on behalf of Institute for Animal Rights Law, I have written Harming Companion Animals: Liability and Damages.
This 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, Institute for Animal Rights Law 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 book’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 the use of actual cases and the extensive up-to-date 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.
Harming Companion Animals: Liability and Damages has been written for the benefit of the layperson whose companion animal has been harmed by negligent or intentional conduct (or, occasionally, by a breach of contract). Accordingly, the monograph has kept the legal jargon to a minimum, when possible expressing legal concepts mostly in lay terms (except when using quotes from actual court decisions).
Harming Companion Animals: Liability and Damages does not deal with criminal conduct. There are currently laws in every state criminalizing certain kinds of illegal behavior toward animals in general, and companion animals in particular. However, because the monograph is intended to arm the layperson in dealing with the civil consequences of negligent and intentional acts, it does not cover criminal conduct.
The monograph’s analysis 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”?
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.
TABLE OF CONTENTS
Introduction
Part I: Liability
1. Intentional Conduct
2. Negligence
3. Breach of Contract
Part II: Damages
Conclusion
Footnotes
Bibliography
