Non-economic damages for pet injuries: Are veterinarians expediting evolution of the law?

Dr. Stan BakerBefore we jump into the subject of pets and the potentially changing legal landscape, let's talk some terminology. In broad terms, non-economic damages are damages (i.e., money) awarded by a court to compensate a victim for the emotional aspects associated with a particular injury.

For example, a drunk driver hits a car carrying a husband and wife and kills the wife. The husband can sue the drunk driver for economic damages (lost wages, hospital bills, car repair bills, etc.) and non-economic damages (loss of his wife's companionship, emotional trauma, etc.). An award for non-economic damages can be quite large unless a state places limits on such awards. Some human medical commentators identify non-economic damages in medical malpractice situations as a factor that drives up the cost of human health care.

Pets and non-economic damages

If you were to poll legal counsel for leading animal health organizations, they likely would state that the law regarding application of non-economic damages to veterinary malpractice situations is well settled. Pet owners cannot recover non-economic damages for injuries to pets because pets are property (like a cell phone). Pet owners can only recover replacement value for property damage. In other words, if an adopted shelter dog dies due to a veterinarian's malpractice, the maximum legal exposure the veterinarian faces is the adoption fee and perhaps some ancillary economic damages such as emergency room fees.

Getty ImagesThe law evolves

When it comes to evolution, veterinarians (along with everyone else) tend to focus on biological aspects. We forget that most everything else that touches our day-to-day lives-such as economics, the arts, technology and the law-also evolves. And perhaps no other type of evolution acts so slowly and yet so abruptly changes our daily lives as the evolution of the law.

For example, on October 6, the United States Supreme Court declined to review several cases overturning bans on same-sex marriage. The day-to-day lives of millions of Americans changed in an instant. The next day, same-sex couples were legally wed for the first time in the history of the states at issue. Animal injury jurisprudence, and the law of non-economic damages in particular, evolves as well.

External pressures drive evolution

Animal injury jurisprudence is a very active area of the law. At last count there were more than 200 law schools in the nation. To my knowledge, all have an animal law class. Media articles indicate that more than 120 law schools have more than one class dedicated to animal law issues. At least eight law schools have received million-dollar grants to create formal programs to advance animal rights. Every year U.S. law schools unleash more than 40,000 new lawyers into society. A primary activity of new and old lawyers is to push the boundaries of the law as they advocate for their clients-and try to get paid.

In contrast, there are only 30 veterinary schools in the United States, and they graduate about 3,000 veterinarians each year. Few veterinary schools, if any, have a class dedicated to animal health legal issues. Most students receive one or two “legal” lectures (sometimes given by a DVM) as part of a veterinary ethics or business class. Many of my veterinary colleagues have not even heard the term “non-economic damages,” which is understandable considering they are focused on saving lives instead of parsing legal theory.

The result is that most external pressures driving the evolution of animal health jurisprudence come from outside the animal health industry, which from a veterinarian's point of view is a suboptimal situation.

Outliers or emerging trends

Most lawyers in this area acknowledge that there are a few historical cases where non-economic damages were awarded in pet injury situations. These cases are considered “outliers” that do not change the general rule. Is this an accurate depiction? When do “outliers” become “trends” that evolve into a majority position?

A problem associated with analyzing any evolutionary process is determining when something changes from “this” to “that.” Most would agree that in 1986 (the year of Bowers v. Hardwick) same sex marriage was illegal in the U.S. As of Oct. 6 same sex marriage is legal in the majority of states. When did this shift start? What drove it? Was it simply a gradual judicial recognition of a shift in social norms? Could a similar shift alter the application of non-economic damages to pet injuries?

For purposes of this article, 1991 and 2008 serve as randomly picked mile markers for the evolution of animals under the law. According to the Humane Society of the United States, in 1991 only seven states had felony animal cruelty laws. In 2014, South Dakota became the last state to enact a felony animal cruelty law. Social norms evolve, which drives evolution in the law.

In 2008, the AVMA submitted a legal brief in a Vermont case that succinctly summarized the law of non-economic damages and pets in all 50 states: Non-economic damages are not available in pet injury situations. Since then animal rights lawyers have attempted to change the law using multiple legal theories and they appear to be gaining ground, at least at the lower court levels.

In 2009, in a case referenced in the Orlando Sentinel, a Rottweiler died after a kennel stay. The owner sued the kennel and was awarded $30,000, including $20,000 for the dog's “intrinsic value.” Given that the current market value for Rottweiler puppies is well below $20,000, one suspects that emotion played a part in the calculation of that award.

In 2010, the Louisiana Court of Appeals upheld an $800 award of emotional damages against a veterinary clinic in the death of a dog. In its ruling the court specifically cited the clinic's own advertising, which highlighted the importance of the emotional bond between a pet and its owner. At the time, not much was made of this ruling because $800 is a relatively small sum and the ruling was tied to a uniquely Louisiana statute.

Just two years later in 2012, the Louisiana Court of Appeals in Barrios v. Safeway Insurance Company upheld a $10,000 emotional damages award while taking “judicial notice of the emotional bond that exists between some pets and their owners and the family status awarded some pets.”

The Animal Legal Defense Fund (ALDF) reports that in September, Judge Eric Richardson of the State Court of Fulton County, Georgia, in a lawsuit by a pet owner against a kennel, held that a dachshund's “intrinsic value” was a more appropriate remedy than replacement value and that the owners were entitled to compensation for veterinary fees and other non-economic elements. The kennel appealed. The ALDF filed a brief urging the Georgia Court of Appeals to affirm the trial court, arguing that companion animals are intrinsically valued family members and emotionally and financially worth more than their market value.

The future of non-economic damages

Although it is appropriate to say that animals are legally classified as property in all 50 states it is no longer appropriate to say that non-economic damages are not available for pet injuries in all 50 states. Until the Louisiana Supreme Court rules otherwise, non-economic damages are available for pet injuries there.

While Louisiana may be an outlier when compared with the rest of the United States, legal theory does not stop at the state line, as evidenced by the more recent Georgia case. Two lower courts in Texas followed similar reasoning and allowed emotion-based damages for pet injury in 2010 and 2011 before being overturned by the Texas Supreme Court in 2013. Every day, the ALDF and others look for similar cases in other states.

The law evolves, sometimes slowly and sometimes quickly. Veterinarians need to be aware that although they may not be the ones filing the lawsuits, they have an important voice in this debate, whether they realize it or not. Every day, veterinarians and animal health companies advertise that “pets are family” and should be treated as such. At least one court in Louisiana took a veterinary clinic at its word and allowed a pet owner to recover emotion-based damages.

It may not be too long before other courts in other jurisdictions listen to veterinarian's marketing pitches and treat pets like family. Once a state supreme court accepts that proposition, the practice of veterinary medicine likely will change forever. Whether that change is good or bad is up for debate, but veterinarians should be mindful of the potential legal implications when they leverage the strong emotional bond between pets and their owners when promoting their services.

Dr. Stan Baker is a veterinarian, attorney and member of the Husch Blackwell animal health group.  He works in the Kansas City Animal Health Corridor where his practice is devoted to the business, regulatory, scientific and policy issues that affect the animal health industry.