Number of malpractice cases spikes ... for pets

By Chris Richard

LOS ANGELES - When attorney Robert Newman lectures at veterinarians' conventions, he brings along his Chihuahua, Ruben.

Mr. Newman begins his talk by telling the audience that he paid $23 for Ruben at an animal shelter. Then the little dog trots on stage. Ruben sits, speaks, plays dead, rolls over, gives Newman a high-five.

"Then I pick him up and I ask, 'How many of you believe that if I bring Ruben to you and you do something wrong that results in his death and you give me $23, that you've made me whole? Raise your hands,' " says Newman.

But there's always silence and no one raises their hands, says the attorney. "They know that a fair-market value approach to a companion animal is a joke, an insult."

It used to be that if a pet died on the operating table or was seriously injured due to human carelessness the owner had little legal recourse. Courts typically defined pets as property, and limited damages to the assessed value of the animal.

But that is changing.

For one thing, state legislatures are starting to reform their animal-protection laws. New York, Connecticut, New Jersey, and Rhode Island are considering legislation granting pet owners the right to sue for pain and suffering damages, including punitive damages for neglect or abuse. Tennessee enacted such a law in 2000 and Illinois passed a version of the law last year. West Virginia has removed caps that once limited damages to the assessed value of a pet.

The trend is part of a growing push to recast pet owners as "guardians" in the eyes of the law, a shift that has some legal scholars worried. Some warn that these specific changes in tort law could bring a wave of frivolous litigation and increases in the price of veterinary care. Others question the move to classify animals as something more than property. Animal-rights activists, on the other hand, welcome such legislation, claiming it might help owners recover substantial damages.

"This is not seen as silly or crazy any more," says Joyce Tischler, executive director of the Animal Legal Defense Fund. "Protecting companion animals is not just something a crazy little old lady in tennis shoes would do. It has touched a nerve with legislators, with judges, and with all sorts of others who consider animals as part of the family."

Subtle shifts in the law

Other legal changes also are under way. The newest revision of the Uniform Probate and Trust Code - the legal structure underlying the disposition of property after a person's death - includes guarantees on trust funds to care for pets. The rules have been adopted by 19 states.

Further, some government bodies are changing the terminology used to describe animals, a move animal-rights activists say is essential to distinguish them from "chattel," a legal definition of property that includes everything from household furniture to livestock. Three years ago, Rhode Island rewrote its statutes concerning domestic animals, replacing the word "owner" with "guardian." A few cities, including West Hollywood, Calif., have done the same.

West Hollywood Mayor Jeffrey Prang says the law is meant only to encourage more humane treatment of animals.

"Hopefully, it's the beginning of a change in our cultural mores, how we think about animals," says Mr. Prang. It shows that there are responsibilities assigned to pet guardianship, he says.

Stephanie Ortel, director of legislation at the American Kennel Club, says changes in terminology aren't as benign as they seem. "When you own property, you clearly have the right to protect your property from undue restrictions and seizure. You may not have that right as a guardian."

New precedents

A few pet owners around the country have filed lawsuits without waiting for changes in the law. Recently a California court allowed a couple to proceed with their lawsuit against their former veterinarian for $20,000 in medical bills and $30,000 in emotional distress damages over the death of their Beagle mix, Austin.

Jennifer Rampton and David Lunas claim the veterinarian was negligent in failing to diagnose a disease after they requested the animal be checked because of a condition they were worried about.

Ms. Rampton, a recent law school graduate who has taken over the litigation, says the lawsuit is about far more than money. When she and Lunas first saw Austin in an animal shelter, he was cowering in the middle of his cage. The points of his teeth had been flattened so he could be used to train fighting dogs without injuring them.

"My husband was homeless when he was a kid," Rampton says. "Taking in Austin was sort of like what he wished someone had done for him."

Stockton's attorney, Linda Wyner, says Austin's original condition usually doesn't lead to cancer, and she points out that the dog didn't die until four months after he was taken to another vet for treatment.

Wyner says she worries about how emotional distress claims in cases of alleged veterinarian malpractice might shape broader California law. The state Supreme Court has already ruled that parents aren't entitled to such damages in cases of medical malpractice that harms their children.

"If I'm that [parent] and I find out now that the owner of an animal subject to veterinary malpractice can get emotional distress, I think I'm troubled by the difference in standard," Wyner says.

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