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Pets’ Sentimental Value Raises Larger Question

By Steve Barghusen, DVM, JD
For Veterinary Practice News

In the recent case, Avery, an 8-year-old mixed-breed dog, escaped from his owners’ yard and was picked up by animal control in Fort Worth, Texas. The owners could not afford to pay the retrieval fines that day but were told they could come back eight days later, pay and take him home. When they returned, they discovered that the dog had been euthanized three days earlier.

The owners sued the shelter employee who authorized the euthanasia and sought to recover Avery’s sentimental value. The trial judge, relying on Texas case law, dismissed the lawsuit, but the 2nd District Court of Appeals disagreed and sent the case back to the lower court for trial.

Questions Arise
While such a case is heartbreaking, the question of whether noneconomic damages should be awarded for harm to a pet is sticky, legally and practically.

For readers smart enough to go to veterinary school rather than law school—and smart enough to not do both!—the concept of non-economic damages needs explanation.

When a court awards monetary damages for harm suffered by a plaintiff, they can be characterized in various ways. The two most common types of damage awards are for economic and noneconomic damages.
 
Economic damages seek to reimburse people for direct monetary losses they experience due to the harm they suffered. Noneconomic damages seek to convert nonmonetary harm into monetary form so that harm can be redressed with money.

With harm to humans, both economic and noneconomic damages can be considerable amounts. If a person was the victim of medical malpractice, the economic damages may include lost wages and medical expenses. The noneconomic damages could include pain and suffering. Depending on the individual’s income, length of illness and the severity of injury, either of these types of damages could potentially be in the millions of dollars.

In the case of harm to an animal, things are a bit different.

Animals Defined
Unlike people, animals are legally considered property. For harm to property, economic damages are usually the fair market replacement value of that property. Noneconomic damages could cover the sentimental value of the property as well as the pain and suffering and mental anguish owner.

However, the law typically does not allow recovery of noneconomic damages for harm to property, including animals.

Obviously, economic damages for harm to a pet dog would rarely amount to much. For example, the fair market value of a terrier mix depreciated over 11 years is negligible.

My dog, Annie, who to me is worth more than any amount of money, is just such a terrier. On the other hand, if I were able to recover damages for my sentimental attachment to Annie, I would be rich, indeed. Under current law, however, if someone were to harm Annie I almost certainly would receive nothing more from a court than her replacement value.

Even in human medical malpractice cases where economic damages can be significant, plaintiffs’ attorneys love noneconomic damage awards. The size of these awards is often determined by how sympathetic a jury feels toward a plaintiff. 

The companion animal veterinarian is largely insulated from medical malpractice lawsuits because the size of economic-damage awards after a pet dog is harmed have been too small to cover the cost of filing a lawsuit.

Allowing noneconomic damages for harm to pets could change all this.
 
The dramatic increase in monetary awards that recovery of noneconomic damages could bring could increase the number of malpractice lawsuits brought against veterinarians.

Some believe that more lawsuits would benefit the practice of veterinary medicine. The theory goes that the fear of losing a lawsuit would force veterinarians to practice a higher standard of care. Most of the proponents of this viewpoint are lawyers.

Virtually no one believes that a pet’s value is simply the cost to replace it with a similar animal. Many of our pets and the relationships we have with them are truly priceless.

The question is: Is society better off when we allow such damages, or are we better off barring these types of damages?

Should society allow noneconomic damage awards for harm to pets? The answer on a societal level is unclear, but there seems little question that the effect on our profession is likely to be profound. Once set in motion, any change will be difficult, if not impossible, to reverse.

Dr. Barghusen is a diplomate of the American Board of Veterinary Practitioners.

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Pets’ Sentimental Value Raises Larger Question

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I do not agree that it is the veterinarian who is asking for it to be both ways in this issue. It is the owners of pets who want it both ways. They want to be able to decline the best care for their pet if it doesn't fit with their budget or their view of what they want to spend on their pet. If a pet is to have a non-economic value that people can sue for in a court of law, then pet owners will have to be legally responsible to provide the best care (at their own expense) for their pet. After all, this is the way we treat children. I noticed that the owners of the dog who was wrongly euthanized is the case at the center of this discussion had the knowlege of where their pet was BUT chose not to retrieve their pet because they did not have the money. If a child wandered away from his home. was rescued, and the parents informed of his situation, would we think it is okay to just leave him there until they decided it was convenient to go get him. No, we would expect them to immediately go get their child, pay for any expenses the child incured, probably appologize for not watching over them better and thank the rescuer for helping him. They might even be questioned by social services as to their fitness for parenting because he was not supervised better in the first place and was able to wonder away from his home. If this were the case, it would be reasonable to expect that if the rescuer did not protect the child and contributed to his death, they should be held to the highest standard of justice. But, this is not the case. The owner of the pet themselves, treated the dog as a object they could leave vulnerable until they were good and ready to get him. It could be said that they treated him like a lost book. The book was lost because of some inattention by the owner Someone found it and brought it to the local library where quickly it was investigated and the real owners identified. The library contacted the owner and let them know that they had the book, but that the book needed some care and so there would be a charge to pay for this care when the book was retrieved. The owners didn't want to pay the money for this care (for what ever reason) inorder to pick up the book. The library said they would keep the book for a limited length of time and cared for it, but if it wasn't retrieved by the end of the time period, the library would dispose of the book. So the book owners waited until the last day and then discover that the book was mistakedly disposed of prior to the originally stated date. Yes, the library did not take care of the book in the way they had said they would and the loss of the book was partly their fault. However, the owner of the book were the ones who treated this "book" as property in the first place and they should not be allowed to now expect to be compensated for its loss as if it were their child. Carol, Grand Rapids, MI Posted: 1/14/2012 9:41:45 AM I think that noneconomic damages being awarded for harm to pets is inevitable. However, I do not believe it is truly in the best interest of pets or their owners. If pets are elevated to a status higher than property (since they are valued at more than market value), there are consequences to both sides. Likely veterinary medicine will become too expensive for the average pet owner to afford. The options for treatment for pet owners then become, the best treatment option (which many times ranges in the thousands of dollars) or euthanasia. There will be no in between, because veterinarians won't take the risk of the lesser outcome. Even the spays that I perform will likely need to be priced higher. Currently spays are break-even priced, but if malpractice insurance goes up, spay prices will likely raise to over $1000. You also have pet owners that vary as well. I can have three pet owners come in and one pet owner thinks of his cat as just that, a cat that can be replaced. He may get the basic vaccines, but when it comes to anything extensive, he likely refuses treatment or opts for euthanasia. Another pet owner may think more of their pet and consider it a family companion and another pet owner may actually have their pet viewed as child-like status. However, the veterinarian cannot guess as to the status of the pet in the family. But if we view pets as more than property, then the "pet parents" must then be guardians. And therefore, refusal of treatment or not getting the treatment recommended by the veterinarian must then be considered neglect or abuse. I have several pet owners that refuse to see a dermatologist for their pets extreme allergies. They say they can't afford the $500 or more to see a specialist, but if they are more than property is that neglect? More animals will be euthanized, veterinary medicine will be too costly, even less people will seek veterinary care for their pet because they will be afraid of not being able to treat appropriately. EVERYONE loses. So if pets are more than property and can receive noneconomic damages. All dogs tied outside to a box, or the junk car can be turned in for animal abuse, right? This will not make things better. Not that I think things are perfect and that we don't need to improve in veterinary medicine. But veterinary medicine has come a long way for the better. We do police ourselves. Curtis, Mt. Pleasant, PA Posted: 1/13/2012 6:06:04 AM The laws on the books no longer reflect the place that companion animals have in the hearts and minds of those who love them. Only those veterianarians who do not exercise due diligence or who act in a sadistic manner towards the family members which we entrust to them, have anything to fear from this precedent. Companion animals are family, and I am glad that this is beginning to be recognized by courageous Judges. The veterinary profession has had it both ways for too long. It is the epitome of hypocrisy for the profession as a whole to benefit from the human/animal bond , while at the same time, denying its existance in a court of law. Peggy, Altamonte Springs, FL Posted: 1/11/2012 9:55:36 AM Of course it is a step in the right direction to attribute sentimental value to a companion animal. It's time that the veterinary profession stopped talking out of both sides of its mouth by exploiting the sentimental value of our pets on the one hand and treating them as property in the legal system in cases of negligence or incompetence. Sure, give us the "market value" of our beloved shelter pets, who have no market value in the eyes of the law. We are not after their value. We are after their safety. We want you to feel accountable to us for the quality of care you give our pets. And if attributing a sentimental value to our pets in the courts will scare you into being more careful and more respectful of their safety, we want the courts to recognize their sentimental value. You don't like that? Tough. Tanya, Seattle, WA Posted: 1/10/2012 9:05:37 AM