New damage laws will impact your wallet

When I get together with friends who work in other healthcare professions, the conversation often turns to malpractice insurance coverage. I amaze everybody else in the discussion with how reasonably priced mine is. The cost for good coverage is fair and not a major expense like it often is for physicians, dentists, podiatrists and others. But that may soon change.

No money for sadness, no money for pets

There are two primary reasons why veterinarians don't pay the high premiums borne by human healthcare professionals. First, courts in most U.S. jurisdictions don't permit recovery of money damages for the pain and suffering of animals when they've been harmed by the negligence of a veterinarian. Second, these same jurisdictions don't provide pet owners with noneconomic damages resulting from veterinary negligence. This means courts don't award money for a pet owner's sadness, depression, loss of companionship and so on.

There's another factor that helps keep malpractice rates low. While insurers can count on modest awards after a verdict against a veterinarian for malpractice, they can also expect few malpractice claims to go to trial. The reason is, personal injury attorneys are compensated on a percentage of the damages recovered—a contingency basis. While a 25 percent or 33 percent chunk of a human personal injury award is a big incentive for an attorney to battle through a human medical case, it can be pretty tough to get one to pursue a veterinary case with a relatively small potential verdict or insurance settlement.

But there's a new twist is on the horizon. A number of state legislatures are considering two new categories of damages that could be sought through the courts in veterinary malpractice lawsuits. These are referred to in the law as "noneconomic damages for wrongful injury to or death of companion animals." I call it "The Personal Injury Lawyer's Full Employment Act of 2011."

Pets aren't beasts of burden

The thinking of the legislators who support this new legal theory goes something like this: For 1,000 years of jurisprudence, animals were considered private property, and injury or destruction of animals was considered a tort against property. In a lawsuit against a person or company for the impairment or loss of an animal, financial recovery was limited to replacement value or some similar valuation of property lost. If a motorist negligently runs into a sheep in Scotland, his insurance pays market value—maybe auction value—for the sheep.

Pretty much the same rule continues to exist for large animals in the United States. If a gas pipe explodes and kills a race horse or half a dozen dairy cows, the insurance companies resolve the amount of the payment needed to make the animal owner financially whole with a few quick phone calls. And for the time being, even companion animal malpractice cases revolve around the issue of liability, not the determination of damages. Damages are most often found to be the value of the pet or the cost of correcting an improperly handled medical procedure.

Enter the new damages paradigm. State lawmakers are now looking with a critical eye at the common law classification of companion animals as property.

Because pets are becoming more like family members and less like beasts of burden, the theory goes, perhaps the law should consider injury to them differently than it has in the past. Further, if a pet is the victim of medical malpractice, wouldn't it make sense to use the same system in the calculation of damage awards as would be used for a human family member? A growing number of people think so, especially many tort lawyers.

Now, I'm not saying that the personal injury bar is the only mover and shaker in the effort to support this new view of how to establish awards in companion animal malpractice cases. But use your imagination as we look through the eyes of two ambitious lawyers in imaginary adjoining states.

A lawyer that sees no gain

Three times last month, John Law—an attorney licensed to practice in West Dakota—received phone calls from various pet owners asking him to represent them:

> The first client's beloved 5-year-old dog died during a pyometra surgery at a local veterinary clinic.

> The second client had a barn cat whose healthy left leg was mistakenly amputated by a veterinarian after the right leg was crushed by a tractor.

> The third client lost a valuable exotic cat that he imported from Africa when his veterinarian's assistant left the clinic's back door open and the feline jumped out of his hands.

Law only agreed to handle the third case, telling the first two potential clients that they would either need to pay him by the hour to sue their veterinarians or find a lawyer willing to handle the cases on a contingency.Then, after having the exotic feline's owner sign a contingency fee agreement under which she would relinquish a third of any recovery as his fee, Law made two phone calls and got the insurance company to settle for $3,000. The cat owner then bought a new African cat for $2,000 and John Law made a quick and easy grand.

The first two callers can't even find a lawyer who will sue their veterinarians. They call all over the state and nobody wants to bother with their cases. The math works out like this:

> Five-year-old mixed-breed hunting dog: $100 value. A replacement is available at any local humane society. Total payday for plaintiff's lawyer under contingency fee arrangement of one-third of $100=$33.33.

> Barn cat: zero value. A replacement is available by waiting a couple months for the next litter out in the barn.

A lawyer that sees a cash cow

During the same week, three different clients with virtually identical claims called Paul Esquire, a local attorney practicing in East Dakota, the state right next door to John Law. As did his colleague to the west, Paul jumped on the easy dollars from the African cat owner. But the other two cases were enticing as well. This is because of the recent enactment of new damages guidelines for companion animals, which recently passed both houses of the East Dakota legislature and was happily signed by the governor. Esquire immediately signs contingency payment agreements with clients one and two. He doesn't even bother calling the companies insuring the two defendant veterinarians. Instead, he files lawsuits against them right away. The paperwork moves forward and the depositions are scheduled. He's thrilled with what he learns.

The hunting dog was his owner's constant companion. They went everywhere together. Since the pyometra surgery went bad, the client has no more interest in hunting or anything else for that matter. He was diagnosed with chronic depression and hasn't been able to work. His libido is gone, too. When the client's wife is deposed, she describes stupendous marital relations—which were ongoing before the veterinarian killed their dog—and her hubby's subsequent total lack of interest.

The barn cat case also goes to depositions and you can't believe the agony barn cat has experienced since the incorrect amputation was performed. The owner's children have been very upset watching the progress of their absolute favorite barn cat in its efforts to manage with the single deformed rear leg. It's hard to say who is suffering more, the cat or the kids.

Esuire may only have made $1,000 on the African cat but under the new damages law, the sky is the limit. He begins fashioning his negotiation strategy for dealing with the veterinarians' insurance carriers. He knows he and his clients will receive calls to settle before trial. It harks back the many auto accident cases he has worked on.

"OK, let's see, the hound dog is only worth $100 because it died under anesthesia and felt no pain. Nowhere to go there. But the client's next five years of antidepressant medication and psychiatric visits should run around $10,000. And the wife's loss of marital enjoyment is always a lucrative injury and might be worth twice that.

"Oh, yeah, note to self, I need to calculate the value of the owner's lost wages for at least three years plus amortization of lost Social Security and 401(k) contributions."

The wheels keep turning.

"As far as the cat, not much information available on pain suffered by animals in recovery from amputation of wrong leg. But all I need to do is figure out the correct argument analogizing pet injuries to people injuries and that should get the judge to allow me to introduce my file videos of human patients recovering from this same mistake.

"And who would've guessed how much those three kids adored that barn cat when there are nine others they don't seem all that interested in?"

The moral of the story: Keep your eye on your wallet and your premium notices when new damage calculation laws decide to ride into town.

Dr. Allen is president of the Associates in Veterinary Law P.C., which provides legal and consulting services to veterinarians. Call (607) 754-1510 or email info@veterinarylaw.com.

For a complete list of articles by Dr. Allen, visit dvm360.com/allen