Pain and Suffering Damages Will Lead to Pain and Suffering

Law.com has this story about a lawyer's attempt to change tort law as it applies to loss of one's animal.  He wants to make it so that you can sue for "loss of companionship" damages when your dog is harmed through veterinary negligence. 

Under existing law, one can sue for loss of companionship when someone negligently or intentionally harms your spouse or child.  You can't, however, sue for loss of companionship when someone harms your best friend - even when your best friend is a dog.

As an animal lover, I respect the activist's sentiment.  But ultimately it will do allowing these suits would cause much more harm than good.

Before changing existing law, you must first show a problem.
Are veterinarians running wild, negligently and recklessly killing animals?  If there isn't a vast record of veterinarian malpractice, why should existing law change?  Ultimately, tort law should decrease human suffering.  So if vets are causing significant human suffering by untimely killing animals, the law should be changed.

But proponents of changing existing law have offered no such evidence - probably because they can't!  Of course there are incompetent vets, but competent vets far outnumber the incompetent ones.  Indeed, having had dogs for most of my life, and having visited with many different vets, I'd more willingly place my dog's life in the hands of a vet, than I would place my own life in a doctor's hands.  I think vets are better at taking care of dogs than doctors are of taking care of people.

Existing law would increase health costs, thus leading to more human suffering.
My dog is a high energy Austrian shepherd.  When he was neutered and had fresh stitches, he tried running and jumping.  We literally had to drug him to keep him from re-opening his stitches.  Given his breed and crazy energy levels, there is about a 90% chance that, in a few years, he will need hip surgery.

Do you know how much this will cost?  Five-thousand dollars.  That's it.

Now, the wife and I are far from rich, so $5,000 is still a lot of money for us.  But for an advanced operation, that's very inexpensive.

One reason this operation is so inexpensive is because vets can not be sued for veterinary malpractice.  They thus don't have to spend tens-of-thousands or hundreds-of-thousands of dollars on malpractice insurance.

As every business owner knows, increases in overhead leads to increased costs to the consumer.  Vets would have to charge more for their services.  How much more?  Who knows, but for every price increase, there would be a consumer priced out of getting that operation for his pet.

Without hesitation, my wife and I do whatever we needed to do if that was what we needed to do to save our dog.  But what about people who don't have access to savings, a 401(k), or a friend or relative who would help out?

They'd have to euthanize their dogs.   

In the tort reform debates, far too many claims are overstated.  But there's no overstatement here: Allowing loss of companionship suits in animal tort cases would literally mean that more dogs would die.

Comments

[KipEsquire]

Okay, but how about non-vets? Or if the conduct was intentional rather than negligent? Or if the plaintiff witnessed the harm, in the spirit of the "zone of danger" I.E.D. framework?

I don't think it's irrational or preposterous to posit that pets are not mere chattel. So the problem is not in the concept of "loss of pet companionship" facially, but only as applied in specific contexts. :-)

[Mike]

Kip: In theory, no. In practice, allowing those suits to move forward would lead us down the slippery slope to vet-malpratice suits. So, alas, I oppose the suits you mention.

[S.cotus]

Mike, In some states (and the District of Columbia), vets can be sued under a malpractice theory. Unfortunately, there are problem animal hospitals out there. Keep in mind that malpractice need not be on a person. As you know, it is often possible to sue for, say, engineering malpractice.

States seem divided between treating pets as chattel v. treating their owners as “guardians.”

As a practical matter, my companion animals are well-insured. Likewise, my vets carry malpractice insurance. But, since I can pay for the best medical care (via insurance), and I have done my research a lot of this is moot. If you had my insurance, it would pay for such surgery.

[Mike]

S.Cotus: What insurance do you use? I researched several policies a while back, and didn't find anyone particuarly trustworthy.

[George Wallace]

This is a topic near and dear to my heart. My partner and I serve as principal defense counsel in Southern California for the professional liability insurance program sponsored by the American Veterinary Medical Association, and the issue of owners' emotional distress or loss of companionship comes up all the time.

California law on this point is (so far) clear: Veterinarians are medical professionals and can be sued for medical/veterinary malpractice on the same terms as a doctors treating human patients. The standard of proof is the same: produce expert testimony to establish that there is a recognized standard of care, that the veterinarian did not adhere to it, and that that failure proximately resulted in the death/injury to the animal.

However, animals are still regarded strictly as items of personal property under California law, so the owner cannot recover damages for their emotional or psychic loss. However real it may be -- and the genuineneness of the emotional bond between humans and animals pretty much goes without saying -- it is not compensable by an award of damages. You recover the loss to the animal's market value, or the costs of repair (subsequent treatment), whichever is less. The market value for some large animals -- successful race horses for example -- may be substantial, but the typical dog, cat, pygmy goat or potbelly pig doesn't amount to much.

It may seem heartless, but emotional recovery is not permitted in many human relationships here either: parents generally cannot recover for their distress if a negligent doctor injures their child; there are no claims for lost companionship/loss of consortium except for that between spouses (lost companionship of your child, or your parent, or your grandparent, or your significant longstanding cohabitant of many years, gay or straight, all noncompensable [although I wouldn't be surprised to see recovery expanded to the members of officially recognized, marriage-like same sex civil unions]).

Some states, notably Florida and Hawaii and [I think] some parts of Texas -- I recall a professor in law school who declared that authoirty for either side of any legal argument can be found in the Texas Court of Civil Appeals -- have permitted emotional distress recovery, but the California approach remains the majority rule.

Your policy analysis of why the law ought to stay as it is is persuasive. (Of course, you are preaching to the converted in my case.) It is easy to predict, though, that claimant animal owners and their counsel will continue to push for ill-advised changes. At least it keeps me off the streets and out of the billiard parlors.

[mythago]

Mike, do you have anything other than guesswork to suggest that the number of animals who would die as a result of vet-malpractice laws is more than the number of animals who die because of a lack of those laws? After all, a careless or incompetent vet need not be concerned that they will be sued for anything beyond the animal's market value, so there is no deterrence to speak of. Heck, if you lost your dog you'd probably be stuck in Small Claims Court to try and get payment for a replacment.

[S.cotus]

I generally agree with Mr. Wallace on the law, though I see things from the other perspective.

While, you should ask around for the best insurance (asking your vet might be a good place to start), I found PetCare pet insurance to ( http://www.petcareinsurance.com ) to be credible and quick at paying. I think they co-brand with one of the big pet-supply chains (there really are not too many pet stores these days), sometimes, but I am not sure.

Since I have Cats, I go with the Quickcare preferred policy. They have never taken more than 10 days to write me a check (which, for some reason, is sent from Canada, which probably delays it by a day or two.)

(I don’t work for Quickcare, and I am not their lawyer. This is just my experience.)

[David M. Nieporent]

After all, a careless or incompetent vet need not be concerned that they will be sued for anything beyond the animal's market value, so there is no deterrence to speak of.

I always think it odd that some people think this way. There are a zillion service providers in the world whom you can't sue for emotional distress. Do you think there's "no deterrence" against any of them doing a bad job?

Most businesses like repeat business. They like referrals. They don't like lawsuits, even if those lawsuits are for small amounts. Those all effect deterrence.

[Fastolfe]

mythago, the primary effect of allowing damages of this nature should be obvious: people will sue to recover these damages. The obvious and direct consequence of this is that suits, on average, will have larger awards or settlements. Since it will be the doctor's malpractice carrier that foots the bill, the insurance company will have to raise malpractice rates in order to stay in business. Vets will not simply eat this cost, since they are in business as well, and will pass on the costs to their customers. Even if the increase is very modest, there are a lot of pet owners that would find procedures at today's rates to be right on the line of what they can afford. Raise the prices even a little, and they are forced to choose euthanasia.

Unless you can throw a wrench in any point of that reasoning, it's accurate to say that, yes, literally, more dogs will die.

And even that is just the conservative case. The sad truth is that when you make it possible for people to recover more damages, more people will sue. In the past, they wouldn't get much out of a lawsuit, so it wasn't worth it to try. They would grieve for a while, and move on. But when you tell them they can get a bigger cash payout, well heck, why not? This is effectively what's happened with today's medical malpractice "industry".

[Aaron]

If the issue is that even a slight rise in vet costs could cause thousands of poor little doggies and kitties to be euthanized, recognizing that pet health care costs are already out of the reach of many pet owners, maybe we should implement subsidies or price controls. Maybe we should reduce or eliminate licensing requirements for vets, so as to get a wider pool of possible veterinary care providers. We could mandate that all veterinary clinics be non-profit. Would those ideas offend your politics? Your sense of priorities? Why do your priorities take precedence over those of others, especially when your priorities cause more pets to die?

As for your made-up final argument about medical malpractice: What percentage of people who are victims of malpractice actually file suit? What are the trends in malpractice litigation?

[Doc t]

Bad vets are dealt with through licensure, the economic issue is real. I have euthanized many dog due to lack of funds. Raising my costs, raise my fee's.

My insurance is less than 200$ a year. Our 14 doctor group practice has never had a claim.

[Aaron]

The issue I raised is not a response to the wonderfully circular argument, "raising my costs raises my fees" - the issue is what (other than politics) makes this particular potential source of an increase in fees more significant than others. Do you offer a sliding scale of fees, by any chance? Do you offer to waive your vet fees, charging only out-of-pocket costs, if the choice is between providing veterinary treatment and euthanizing a pet?

I'm pretty much on Mike's side here - society should be very cautious about considering non-economic damages in veterinary malpractice cases. That doesn't mean I have to suffer through arguments that one source of a vet bill increase will "kill pets" while other factors which raise the cost of veterinary care are blithely ignored.