When the bond breaks

National Report — Pets die every day, but when it happens on the veterinarian's table should the doctor be forced to pay for the pet owner's pain and suffering?

Legislators in several states think so, and law schools are churning out more animal-rights-focused attorneys who tend to agree with them.

Since 2005, several states have seen a number of bills that propose changing laws to award non-economic damages when a companion animal is wrongfully injured or killed.

In 2007, the legislatures in Hawaii, Massachusetts, Mississippi, New Jersey, New York, Oregon, Rhode Island and Washington, D.C., saw such bills introduced, but none made it to law. Vermont's Supreme Court is still considering a case that would award damages of emotional distress and loss of companionship in malpractice cases.

This year, similar bills were introduced in Hawaii and New York.

A law proposed Jan. 21 in the New York State Assembly would offer pet owners compensation for the value of their pet, as well as damages for the loss of companionship and comfort, in cases of intentional death, injury or negligence. The bill offers no cap to the amount of damages that could be awarded, but damages recovered for an injury would have to be put into a trust for the animal's care, and damages for a death must be distributed to a non-profit organization dedicated to the protection of animals.

Immediately sent to committee, the bill has not progressed since it was introduced. It's been the same for similar bills introduced in New York since 2002: once it goes to committee, it doesn't return to the floor.

Hawaii's Senate Bill 73 was the most specific: It would remove domestic animals from the classification of "property" or "material objects," allowing pet owners to recover up to $25,000 for serious emotional distress suffered as a result of injury or loss of a pet. It was introduced Jan. 23, but Richard Rapoza, communications director for the Hawaii Senate, says the bill has been referred to a Senate committee and is unlikely to return to the floor. But he thinks it's only a matter of time before the bill reappears and eventually passes.

"I think there are specific people in town who feel very strongly about it and will have it introduced again," he says, adding a bill introduced three years ago came close to passing. "I can understand where veterinarians are concerned. On the other hand, veterinarians benefit greatly from the bond between people and their pets. It would be fitting for them also to recognize that bond and offer some compensation in a case of negligence. I don't think it's fair to have it both ways."

The debate

One Hawaiian in favor of pushing for the issue's continued introduction to the Legislature is Honolulu attorney Emily Gardner, who specializes in animal-law interests.

"Pets often are considered property under many state laws, and many services and products market to pet owners for their best friend. All the advertising is targeted to consumers, recognizing pets aren't just a piece of property," she says. "Veterinarians are well aware of this and use that information to their advantage for higher veterinary fees. Veterinary costs have tripled in the last 10 years because people are willing to pay for it."

More pet owners are showing interest in pursuing lawsuits against companion-animal industries like pet-food companies and veterinary medicine, Gardner says. And professions that bank on the emotional attachment people have with their pets can't deny that attachment when it comes time to pay the piper.

Practice owner Celina Hatt takes offense to this school of thought.

"I don't see that as an accurate accusation," says the Ewa Beach, Hawaii, practitioner. "Usually vets are the last to charge a lot without justifying it. It is expensive, but I think it's expensive because there's not a lot of insurance to pay for these things. My concern is that it's a very subjective, emotional bill. It's very hard to measure emotional distress."

And veterinarians pursued under the new law probably would seldom be vindicated, she says.

"Insurance companies would just settle. It would be a new way to make money for some people. Practicing in Hawaii after practicing in the mainland ... I think people are a bit more behind here. They will breed their animals because they bought it at a pet store and want to get reimbursed in some way," she says. "There's a lot of people looking for ways to make money."

The change to no-fault auto insurance doubled rates overnight, adds Honolulu practice owner Darrell Allison. This kind of bill would do the same to veterinary malpractice insurance premiums, he says.

Still, Gardner is not convinced veterinarians deserve to be protected from emotional distress caused by negligence.

"No one wants to put vets out of business. But I don't think a profession deserves to be insulated from that liability if you can establish emotional distress is genuine," she says.

Most people don't agree.

A 2008 Gallup Poll showed that 63 percent of Americans believe that, while pet owners should be entitled to recover actual damages for the death or injury of their pet, emotional losses should not be included. Veterinarians believe the issue is driven by attorneys hungry for new income streams.

"You can sue almost anybody for anything, and if there's an insurance company on the other end of it that's willing to settle, it's going to raise the insurance premiums," says Allison, who believes the issue eventually will pass in "left-wing" Hawaii.

It's not that veterinarians deny the bond between people and their pets, says Dr. Eric Ako, another Honolulu practice owner, leader of the Hawaii Veterinary Medical Association and immediate past chair of the Hawaii Board of Veterinary Medical Examiners.

"We think it's misdirected passion. Of course, we're increasingly passionate about our pets. However, this is an inappropriate action to take," he says. "We think it's lawyer-driven."

"I don't want to sound totally against it. I hear the other side of the issue. I consider my pets members of my family," he says. "But we need to find a reasonable compromise."

Those compromises could come in the form of caps — much smaller than the $25,000 proposed in this last bill — and exemptions for veterinarians.

One of the two states (Illinois and Tennessee) that allow for non-economic damages has this type of exemption. The Tennessee law is limited to $5,000 and exempts non-economic awards for professional negligence against a licensed veterinarian.

The law

Numerous case law exists from state supreme, district and appellate courts that chose not to award emotional-distress damages. Judges repeatedly have acknowledged that pets, to their owners, are more than the personal property the law considers them to be, but that ruling in favor of emotional damages for pets would set a precedent that could flood courts with tort claims and create a slippery slope toward transferring human qualities to other types of property to which people have an emotional attachment.

So, if these bills are introduced, repeatedly fail and don't seem to be backed by majority public opinion, why do legislators continue to beat a dead horse?

Because the human-animal bond is increasing, and new legislators see this as an issue that pulls at the heartstrings, says Greg Dennis, an attorney and American Veterinary Medical Law Association member. But they keep failing because, in the scope or tort law, even these well-meaning bills seem irrational.

"I think the reason those laws are having problems is you're looking in isolation to the human-animal bond, and you have to look at the law in its totality," Dennis says, adding some states only allow immediate family members to claim emotional distress damages for human cases.

For example, a grandparent who witnesses the death of their grandchild in some states could not recover damages.

But that state might introduce a law that would allow a pet owner to recover emotional damages for a pet.

"It's one of these bills that's warm and fuzzy and sounds right, but when you look at the expanse of the law, where do you draw the line? It gets hard to justify it," he says.

But regardless of this history, some in the legal profession, like Gardner, see it another way. "Grandchildren perhaps aren't sleeping in the bed with their grandparents for 15 or 20 years like their cat. It can be a very intimate relationship," Gardner says.

While Hawaii's and New York's bills are stuck in committees and Vermont's Supreme Court delays its decision, it seems that veterinarians are safe from the risk of emotional distress lawsuits — but maybe not for long.