Legal issues for companion animal practitioners (Proceedings)

The companion animal veterinary practitioner is faced with a number of unique legal considerations in the daily discharge of his or her professional duties. The law relating to small animal veterinary medicine is evolving quickly given the enhanced status of animals in our society. Certainly, the role of the small animal practitioner seems to being evolving as well giving rise to some unique and novel legal considerations.

Informed Consent to Treatment

Everyone will agree that the veterinary practitioner can only proceed with any treatment plan so long as he or she has the consent of the client and that such consent must be informed. While much has been written on this topic it is important to review some of its more salient aspects.

Probable Risks

It is clear that the practitioner must inform the client of all of the probable risks of a particular treatment or procedure based on the reasonable care and skill of the veterinarian. If the procedure has any risk of death or serious injury to the animal then that risk must be disclosed even though it may be only possible.

Material Risks

The veterinary practitioner must also advise the client of any material risks - this requires a subjective view of the circumstances and discussion with the client to determine what is material or not. For instance, the risk of sterility will be very relevant to a breeder client but may not be for the companion animal owner.

Authority to Give Consent

It is clear that the only person from which consent can be lawfully obtained is the owner of the animal or the owner's authorized legal agent. One should make inquiries as to whether or not the person giving the consent is the owner of the animal. As well, one should be cautious in accepting the consent of a child without confirming the consent with an adult person.

Emergencies

In the event of an emergency, one has the right to proceed with treatment without consent; however, the prudent practitioner will make certain that the facts of the case support the notion of life-threatening presentation prior to proceeding without consent.

Obtaining Consent

The manner in which one obtains consent to treatment varies; however, it is clear that a written consent thoughtfully considered by the client is the most appropriate. If one obtains telephone consent (as is often the case) it is important that the fact of consent be entered into the clinic records.

The Impact of the Human/Animal Bond

The most controversial area in the calculation of damages appears to be in a small animal context for the emotional distress of pet owners whose pets have been injured or killed through negligence.

The importance of the human/animal bond has been advanced in support for new heads of damages for this distress; damages in a case in Florida in 1964 were contemplated on this basis. In La Porte v. Associated Independents, Inc., the defendant was a corporation engaged in the garbage collection business. The plaintiff was one of the customers of the defendant. One morning, Mrs. La Porte was preparing breakfast, while her miniature dachshund was tethered outside and beyond the reach of her garbage cans. She observed a garbage collector employed by the defendant empty the garbage and then hurl the empty can in the direction of the dog, striking it. The dog was injured and eventually died from its injuries. Having witnessed the incident, the plaintiff became quite distraught to the point of marked hysteria and sought the assistance of her family physician, who later testified that he had been treating Mrs. La Porte for a nervous condition. The court reviewed these facts and indicated that the plaintiff could recover damages for the alleged mental suffering and awarded the plaintiff $2,000.00 in compensatory damages and $1,000.00 for punitive damages. The defendant then appealed this decision arguing that the plaintiff's ability to be compensated for nervous suffering was improper.

The Florida District Court of Appeal held that while the general rule was that in the case of injury or destruction of a companion animal, the market value of the animal should be used to determine the amount of the pecuniary loss. The court then stated the following:

"The restriction of the loss of a pet to its intrinsic value in circumstances such as the ones before us is a principle we cannot accept. Without indulging in a discussion of the affinity between 'sentimental value' and 'mental suffering', we feel that the affection that a master has for his dog is a very real thing and that the malicious destruction of the pet provides an element of damage for which the owner should recover, irrespective of the value of the animal because of its special training such as a seeing eye dog or sheep dog."

As such, approximately 40 years ago, courts started to give some credence to the human/animal bond and were prepared to award damages to a bereaved owner in certain circumstances.

The jurisprudence remains somewhat unsettled in this area; more specifically, some cases have adopted the notion of the human/animal bond while others seem to reject its impact. On balance, it appears that courts will be faced with this issue for a number of years until a definitive body of law develops.

The veterinary practitioner must appreciate that as the scientific studies continue to provide results that draw causal links between human health and the continued good health of companion animals, the risk and exposure of greater damage awards is a reality in negligence cases. It will, in my view, become increasingly difficult to argue that the appropriate damage award is restricted to the value of the animal; as a result, veterinary malpractice insurers will require the payment of higher premiums to reflect the increased exposure. In addition, litigation involving pet owners will likely increase as greater damage awards will be at stake.

Animal Guardianship versus Ownership

There is clear evidence that the human/animal bond is now the subject of statutory recognition in various forms: municipal ordinances relating to animal control issues in both San Francisco and Boulder have been amended in recent years to change the words "animal owners" to "animal guardians" - with respect, I suggest that the term "guardian" has a distinctly different connotation than that of "owner" suggesting a level of care is required because of the dependency of the animal. As well, the States of Maryland and Tennessee have each placed bills before their respective state legislatures to limit the damage awards that might be made available by a court to an animal owner nat relatively nominal amounts. In Oregon, a bill introduced in the state legislature, but defeated, would have limited the damages to substantial $250,000 for non-economic losses. As such, I respectfully suggest that this represents further evidence of the recognition of the importance of animals to their owners and, indeed, the influence of the human/animal bond.

As the status of companion animals is society is enhanced, so to will be the claims made against their caregivers in the future. The prudent practitioner will implement strategic avoidance strategies in the clinic in order to effectively manage this increased risk.