Client Emotional Pain & Suffering Claims Against Veterinarians and Ownership vs. Guardianship of Animals

Gregory M. Dennis

Twelve-States Veterinary

Leadership Forum

Breckenridge, Colorado

October 24, 2003

Most States Do Not Allow Emotional Pain & Suffering or Loss of Companionship Damages for Negligent Loss of or Injury to a Pet

While there has been considerable publicity of late about trial courts allowing pet owners to sue for emotional pain & suffering damages, state appellate courts have generally been refusing to recognize these claims when negligence or malpractice is alleged.

Oberschlake v. Veterinary Associates Animal Hospital, 151 Ohio App.3d 741, 785 N.E.2d 811 (2nd Dist. 2003)--rejecting [1] owners’ emotional pain & suffering claim and [2] dog’s pain & suffering claim against a veterinarian brought by his “pet guardians.”

New York A.B. 6340 & S.B. 2791 (2003-04) & Massachusetts S.B. 932 (2003 & 04)

“Damages…for injuries sustained by a companion animal shall be recovered in an action in tort brought by a guardian ad litem or next friend appointed by the court….”

“Damages so recovered shall be payable into a trust for the care of the companion animal, which trust shall be enforceable for the life of the companion animal by a person appointed by the court. Any remainder of trust funds existing at the death of the companion animal shall be distributed to a non-profit organization dedicated to the protection of companion animals.”

110 + Years of Emotional Distress, Sentimental Value and/or Loss of

Companionship Claims Viz-a-Via Animals Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931 (1891)--horse owner not allowed sentimental value for loss of horse.

Klein v. St. Louis Transit Co., 117 Mo. App. 619, 93 S.W. 281 (St. L. 1906)--dog owner not allowed to recover damages for its mental suffering caused by a railroad having lost its dog.

City of Canadian v. Guthrie, 87 S.W.2d 316 (Tex. Civ. App. 1932)--horse owner not allowed sentimental value damages for loss of horse.

Wilcox v. Butt’s Drug Stores, 38 N.M. 502, 35 P.2d 978, 94 A.L.R. 726 (1934)--no sentimental value damages for druggist erroneous prescription causing dog’s death.

Before the 1990s Only Florida, Hawaii & Louisiana Allowed Emotional Distress Damages for Loss of AnimalsCampbell v. Animal Quarantine Station, Etc., 63 Haw. 557, 632 P.2d 1066 (1981)--mental distress claim could be made for death of family pet.

Peloquin v. Calcasieu Parish Policy Jury, 367 So.2d 1246 (La. App. 1979)–plaintiffs could seek damages for, among other things, mental anguish, inconvenience and humiliation attributable to loss of their cat.

Knowles Animal Hospital, Inc. v. Willis, 360 So. 2d 37 (Fla. App. 1978) cert. denied 368 So.2d 1369 (Fla. 1979)--trial judge did not err in a veterinary malpractice action by allowing the jury to award damages to dog owner for its mental pain & suffering.

Rees v. Flaherty, 2003 Conn. Super. LEXIS 289 (2003)--not allowing negligent infliction of emotional distress claim against a person who had boarded a dog.

Hawkins v. Harney, D.V.M., 2003 MT 58, 2003 Mont. LEXIS 63 (2003)--dismissing dog owner’s lawsuit for emotional distress because of owner’s violation of discovery procedures.

Lockett v. Hill, 182 Or. App. 377, 51 P.3d 5 (2002)--declining to accept Steven M. Wise’s “quasi-children” contention for pets.

Ammon v. Welty, 2002 WL 1488673, 2002 Ky. App. LEXIS 1400 (2002)--declining to recognize loss of companionship claim for death of a dog.

Lewis v. Di Donna, 294 App. Div.2d 799, 743 N.Y.S.2d 186 (2002)--dog owner could not make a loss of companionship claim for druggist’s mis-prescription.

McAdams v. Faulk, 2002 WL 700956, 2002 Ark. App. LEXIS 258 (2002)--[1] deceased dog could not maintain malpractice action against veterinarian but [2] dog owner could make a claim for its emotional pain & suffering.

Holbrook v. Stansell, 254 Ga. App. 553, 562 S.E.2d 731 (2002)--no claim for negligent emotional distress having witnessed dog attack and injure a foal that later put to sleep.

Harabes v. The Barkery, Inc., 348 N.J. Super. 366, 791 A.2d 1142 (2001)--rejecting emotional pain & suffering damages for negligent death of dog.

Koester v. VCA Animal Hospital, 244 Mich. App. 173, 624 N.W.2d 209 (2000) appeal denied 631 N.W.2d 339 (2001)--declining to allow a claim for emotional pain & suffering in a veterinary malpractice action.

Soto v. U.S.A., 2001 U.S. Dist. LEXIS 10743 (W.D. Mich. 2001) aff’d in part & rev’d in part on other grounds 2003 U.S. App. LEXIS 7292 (6th Cir. 2003)--no liability for I.N.S. intentionally killing a dog during a raid.

Johnson v. Douglas, 187 Misc. 2d 509; 723 N.Y.S.2d 627 (2001)--no claim for emotional distress having seen dog run over.

Rabideau v. City of Racine, 243 Wis.2d 486, 627 N.W.2d 795 (2001)--no liability for police officer intentionally shooting and killed dog in front of its owner.

Fackler v. Genetzky, 257 Neb. 130, 595 N.W.2d 884 (1999) appeal after remand 263 Neb. 68, 638 N.W.2d 521 (2001)-- emotional pain & suffering for loss of two horses not allowed; veterinary malpractice action.

Zeid v. Pearce, 953 S.W.2d 368 (Tex. App. El Paso 1997)-- emotional pain & suffering claim not allowed; veterinary malpractice action.

Nichols v. Sukaro Kennels, 555 N.W.2d 689 (Iowa 1996)--negligence claim for emotional pain & suffering not allowed for dog that was mauled to death at a kennel

Jason v. Parks, 224 App. Div.2d 494 , 638 N.Y.S.2d 170 (1996)--New York did not allow emotional pain & suffering claim; veterinary malpractice action.

Carroll v. Rock, 220 Ga. App. 260, 469 S.E.2d 391 (1996)--trial court made a mistake by allowing pet owner to introduce evidence of its emotional condition after cat escape from a clinic.

McDonald v. Ohio State Univ. Veterinary, 67 Ohio Misc.2d 40, 644 N.E.2d 750 (1994)--Ohio does not recognize sentimental value claims; veterinary malpractice action.

Gluckman v. American Airlines, Inc., 844 F. Supp. 141 (S.D.N.Y. 1994)--New York law does not allow emotional pain & suffering for negligent loss of an animal.

Langford v. Emergency Pet Clinic, 96 Ohio App.3d 174, 644 N.E.2d 1035 appeal denied 71 Ohio St.3d 1405, 641 N.E.2d 203 (1994)–rejecting intentional or negligent infliction of emotional distress claim for alleged improper burial of a pet.

Daughen v. Fox, 372 Pa. Super. 405, 539 A.2d 858 appeal denied 520 Pa. 605, 553 A.2d 967 (1988)--under no circumstances may there be damages for the loss of companionship of a pet.

Janovski v. Presser Animal Hospital, Ltd., 157 Ill. App.3d 818, 110 Ill. Dec. 53, 510 N.E.2d 1084 (1987)--dog owner could not recover for loss of companionship for veterinarian having negligently caused death of dog.

Julian v. DeVincent, 155 W. Va. 320, 184 S.E.2d 535 (1971)–plaintiff could not recover damages for the sentimental value of its dog.

IT IS NOT LIMITED TO DOGS & CATSSher v. Countrywide Home Loans, Inc., 2003 Fla. App. LEXIS 10224 (Fla. App. 4th Dist. 2003)--claim for emotional distress for loss of pet turtles dismissed as pet owner sued wrong party.

Krasnecky v. Meffen, 56 Mass. App. 418, 777 N.E.2d 1286 (2002) rev. denied 438 Mass. 1106, 782 N.E.2d 516 (2003)--rejecting wrongful death and emotional pain & suffering claim brought by sheep owners.

American Soc. for the Prevention of Cruelty to Animals v. Ringling Bros. et al., 317 F.3d 334 (D.C. Cir. 2003)--former circus employee allowed to maintain action under the federal Endangered Species Act for aesthetic and emotional injury from allegedly having seen elephants mistreated.

Intentional, Outrageous or Malicious Injury or Killing of Animal Exception

Some states do allow emotional distress damages for an intentional maiming or killing of an animal or outrageous or malicious conduct.

Burgess v. Taylor, 44 S.W.3d 806, 91 A.L.R. 5th 749 (Ky. App. 2001)--liability for intentionally killing a horse.

Brown v. Muhlenberg Township, 269 F.3d 205 (3rd Cir. 2001)--Pennsylvania allows emotional distress claim if animal intentionally killed in the owner’s presence.

Copenhaver v. Borough of Bernville, 2003 U.S. Dist. LEXIS 1315 (E.D. Pa. 2003)--no claim as dog owners did not actually see the killing of their dog.

Intentional / Malicious Exception (cont.’)

Fackler v. Genetzky, 257 Neb. 130, 595 N.W.2d 884 (1999) appeal after remand 263 Neb. 68, 638 N.W.2d 521 (2001)--negligence claim against veterinarian for emotional pain & suffering for loss of two horses not allowed, but Nebraska leaves open the door to consider in the future if it will allow such claims for an intentional injury or killing.

In the Matter of Kline (N.J. App. Div. A-1788-95T5, July 12, 1996)--assistance dog owner allowed to apply for mental distress damages under state Violent Crime Compensation Law for having seen her dog attacked and stoned.

Intentional / Malicious Exception (cont.’) -

Miller v. Parana, 426 Pa. Super. 189, 626 A.2d 637 (1993)--in an action for intentional infliction of emotional distress arising from veterinarian’s alleged beating to death of the plaintiff’s dog, the veterinarian’s conduct did not rise to the level of outrageousness necessary to support an award of damages.

Nelson v. Percy, 149 Vt. 168, 540 A.2d 1035 (Vt. 1987).

Katsaris v. Cook, 180 Cal. App. 3d 256, 225 Cal. Rptr. 531 (Cal. App. 1986).

Gill v. Brown, 107 Idaho 1137, 695 P.2d 1276 (Idaho App. 1985).

Richardson v. Fairbanks N. Star Borough, 705 P.2d 454 (Alaska 1985).

Intentional / Malicious Exception (cont.’)

Banasczek v. Kowalski, 10 Pa. D. & C.3d 94, 1979 WL 489 (Luzerne County, Pennsylvania, 1979).

LaPorte v. Associated Indeps., Inc., 163 So. 2d 267, 1 A.L.R.3d 992 (Fla. 1964).

City of Garland v. White, 368 S.W.2d 12 (Tex. Civ. App. 1963).

Ramey v. Collins, 2000 WL 776932, 2000 Ohio App. LEXIS 2540 appeal dismissed 90 Ohio St.3d 1428, 736 N.E.2d 25 (2000)--rejecting claim that plaintiffs had a constitutional right of freedom of expression in or association with a family pet.

Treatises -

Annot., Recovery of Damages for Emotional Distress Due to Treatment of Pets and Animals, 91 A.L.R. 5th 545 (2001).

Dennis, Emotional Pain & Suffering Damages for Loss of an Animal Opens the Door to Inquire About the Owner, Vol. 6, no. 2, American Veterinary Medical Law Association Newsletter (March 2001).

Sorenson, Life in the Balance--Practitioners, Pet Owners Grappled with Pivotal Question: How Much is this Animal Worth? Vol. 11, no. 3 Veterinary Product News 1 (March 1999).

Treaties (cont.’) -

Wise, Recovery of Common Law Damages for Emotional Distress, Loss of Society, and Loss of Companionship for the Wrongful Death of a Companion Animal, 4 Animal Law 33 (1998).

Kay et al., Pet Loss and Human Bereavement (Ames, Iowa: The Iowa State University Press, 1995).

Note, Liability for the Injury and Destruction of Canines, 26 Fla. L. Rev. 78 (1973).

ACTUAL / REPLACEMENT VALUE TO OWNER, RATHER THAN FAIR MARKET VALUE, MAY BE RECOVERED AS DAMAGES

Mitchell v. Heinrichs, 27 P.3d 309 (Alaska 2001)--“Where...there may not be any fair market value for an adult dog, the ‘value to the owner may be based on such things as the cost of replacement, original cost, and cost to reproduce.’ Thus, an owner may seek reasonable replacement costs–including such items as the cost of purchasing a puppy of the same breed, the cost of immunization, the cost of neutering the pet, and the cost of comparable training. Or an owner may seek to recover the original cost of the dog, including the purchase price and, again, such investments as immunization, neutering, and training. … it may be appropriate to consider the breeding potential of the animal, and whether the dog was purchased for the purpose of breeding with other purebreds and selling the puppies.” (Italics supplied.)

ACTUAL / REPLACEMENT VALUE (cont.’)

Mercurio v. Weber, 2003 N.Y. Slip Op. 51036U, 2003 N.Y. LEXIS 801 (2003)--action by a 9/11 widow for loss of dog. Defendant failed to appear and therefore default judgment entered. Trial judge ruled plaintiff was entitled to replacement value of her dog. Also said:

“Pricing companionship is inherently difficult, but since plaintiff has presented us with a figure that reasonably approximates the cost of replacing [her dog] ($1,513.58 ), the court accepts that as the fair market price of [her dog]. Even though it is substantially higher than what plaintiff paid for [her dog], the court presumes that it encompasses the loss of companionship as well.” (Italics supplied.)

Turning to State Legislatures

As state appellate courts have been declining to allow pet owners to recover emotional pain & suffering or loss of consortium damages for loss of or injury to a pet, state legislatures are now starting to be asked look at the issue and enact legislation.

Already, Illinois and Tennessee have such statutes.

During 2003, not only Colorado, but also Massachusetts, New Jersey, New York and Rhode Island had Bills introduced before them to allow for emotional pain & suffering, emotional distress, loss of companionship damages for loss of or injury to a pet / companion animal.

Turning to State Legislatures (cont.’)

In June 2002, S.B. 1379 was introduced before the Michigan Legislature that would allow “[t]he owner of a domestic animal [to] bring a civil action and recover noneconomic damages up to $250,000.00 for loss of that domestic companion animal caused by another person’s gross negligence or willful and wanton misconduct.”

Turning to State Legislatures (cont.’)Colorado H.B. 03-1260--Would have allowed up to $100,000.00 in damages; withdrawn from consideration; possibly to be reintroduced during the 2004 Session.

Massachusetts S. B. 932--No limit for emotional distress or loss of companionship, society, protection & services damages. Minimum of $4,500.00 punitive damages for intentionally or recklessly injuring or killing a companion animal.

Michigan S.B. 1379--up to $250,000.00 in damages referred to judiciary committee in June 2002, remained there and died.

New Jersey A.B. 3339--Would have allowed up to $500.00 in damages.

Turning to State Legislatures (cont.’)New York A.B. 6340 & S.B. 2791--No limit for emotional distress or loss of companionship, society, protection & services damages. Minimum of $4,500.00 punitive damages for intentionally or recklessly injuring or killing a companion animal. Presently, not likely to pass during current (2003 - 04) session

Rhode Island H.B. 5817--Would have allowed up to $10,000.00 in damages; not reported out of the committee by the deadline date.

Tennessee

Tenn. Code § 44-17-403. Death of pet caused by negligent act of another – Damages

“(a) If a person’s pet is killed or sustains injuries which result in death caused by the unlawful and intentional, or negligent, act of another or the animal of another, the trier of fact may find the individual causing the death or the owner of the animal causing the death liable for up to four thousand dollars ($4,000) in noneconomic damages; provided, that if such death is caused by the negligent act of another, the death or fatal injury must occur on the property of the deceased pet’s owner or caretaker, or while under control and supervision of the deceased pet’s owner or caretaker.

“(b) As used in this section, “pet” means any domesticated dog or cat normally maintained in or near the household of its owner. [Italics supplied.]

“(c) Limits for noneconomic damages set out in subsection (a) shall not apply to causes of action for intentional infliction of emotional distress or any other civil action other than the direct and sole loss of a pet. [Italics supplied.]

“(d) Noneconomic damages awarded pursuant to this section shall be limited to compensation for the loss of the reasonably expected society, companionship, love and affection of the pet.

“(e) This section shall not apply to any not-for-profit entity or governmental agency, or its employees, negligently causing the death of a pet while acting on the behalf of public health or animal welfare; to any killing of a dog that has been or was killing or worrying livestock as in [Tenn. Code Ann.] § 44-17-203; nor shall this section be construed to authorize any award of noneconomic damages in an action for professional negligence against a licensed veterinarian.

“(f) The provisions of this section shall apply only in incorporated areas of any county having a population in excess of seventy-five thousand (75,000) according to the 1990 federal census or any subsequent census.” (Bold & Italics supplied.)

IllinoisHumane Care for Animals Act, 510 Ill. C.S. 70/1 et seq.

“In addition, to [actual out-of-pocket expense] damages that may be proven, the owner is also entitled to punitive or exemplary damages of not less than $500 but not more than $25,000 for each act of abuse or neglect to which the animal was subjected. In addition, the court must award reasonable attorney’s fees and costs actually incurred by the owner in the prosecution of any action under this Section. The remedies provided by this Section are in addition to any other remedies allowed by law. In an action under this Section, the court may enter any injunctive orders reasonably necessary to protect animals from any further acts of abuse, neglect, or harassment by a defendant. ” (Bold & Italics supplied.) 510 Ill. C.S. 70/16.3: Civil actions.

Justifications Being Given to State Legislatures for Allowing Emotional Pain & Suffering or Loss of Companionship Damages

“JUSTIFICATION: Brutal violence against animals, so often a precursor to violence against humans, goes on largely undeterred--and entirely uncompensated--because criminal and anti-cruelty measures often aren’t enforced, and our civil tort law still treats animals the same as inanimate property: like table and chairs.” (Italics supplied.)

“‘…the emotional harms wrought by the death of a companion animal must be recognized if these goals of tort law [I.e., compensating the victim and punishing the wrongdoer] are to be fulfilled.”

New York A.B. 6340 & S.B. 2791 Summary (2003)

Possible Responses to Bills Authorizing Emotional Pain & Suffering or Loss of Companionship Damages?

Inconsistency in Legislative action--when such damages are being restricted, limited or considered for possible elimination for human injury, Legislature would be allowing such damages for injuries to animals.

If Legislature is to allow such claims against veterinarians, then veterinarians should be enjoy the same protections of the state’s medical professional malpractice tort reform laws. E.g., Neasbitt v. Warren, 22 S.W.3d 107 (Tex. App. Ft. Worth 2000)--veterinarians not covered by medical tort reform law.

Possible Responses (cont.) Same Protections? Veterinarians to covered by state medical malpractice

reform laws. Veterinarians to have same statute of limitations for

malpractice as physicians. I.e., generally shorter and/or cannot be extended for as long as other professionals

Plaintiff to have veterinary expert witness affidavit at commencement of action or shortly thereafter opining veterinarian deviated from the standard of practice, how deviated, and the deviation resulted in injury or death.

Veterinary malpractice screening panels.

Possible Responses (cont.) State should provide financial assistance and tax-breaks

like for physicians and human hospitals? Increase in insurance premiums for veterinary malpractice

in states allowing emotional distress damages with veterinary care costs rising as those increased insurance costs are passed on to clients.

Clearly specify what animals emotional distress or loss of consortium claims can be made on.

Specify a maximum dollar limit for such claims. Specify type of conduct required for such claims--gross

negligence, wanton, willful, malicious. Client’s entire history viz-a-via any animals should be

admissible in evidence.

Possible Responses (cont.’)

Claimants should be required to have expert psychiatric / psychology affidavit and testimony directly attributing all of their claimed emotional distress to the loss of or injury to their animal. If any of the claimant’s emotional condition is attributable to some other cause, then no claim for emotional distress or loss of companionship should be allowed.

What About Authorizing Emotional Pain & Suffering or Loss of Companionship Damages Only for Gross or Wanton Negligence or Willful Conduct?

Animal owners who before would have alleged just ordinary negligence or malpractice, will now start alleging their veterinarian was grossly negligent or engaged in willful and wanton misconduct in order to enhance the settlement value of their lawsuit.

There may be no insurance coverage for a jury verdict of gross negligence or willful and wanton misconduct.

Changing the Legal Status of Animals:(1) Owners Becoming Guardians & (2) Pet Trusts

Under common law, predating the settlement of north America, domesticated animals have been considered the property of people.

Various local communities around the country, including in Colorado, have enacted ordinances declaring that one does not own an animal but, rather, is the guardian or custodian of the animal.

In 2001 Rhode Island became the first state to incorporate the use of the word “guardian” into its statutes dealing with animals.

Rhode Island -

R.I. Code § 4-13-41: Use of the terms owner or guardian:

“Wherever the word ‘owner’ shall appear in this chapter [Animals and Animal Husbandry–Dogs] it shall also mean and may be interchanged with the word ‘guardian’ as defined in [R.I. Code] § 4-13-1.2.”R.I. Code § 4-13-1.2(10) -

“‘Guardian’ shall mean a person(s) having the same rights and responsibilities of an owner, keeper and both terms shall be used interchangeably. A guardian shall also mean a person who possesses, has title to or an interest in, harbors or has control, custody or possession of an animal and who is responsible for an animal’s safety and well-being.”

Ownership to Guardianship?

Guardianships are a fiduciary relationship that imposes a duty of the highest fidelity and requires the guardian always act in the best interest of the ward (animal).

Some courts have already described the veterinarian-client-patient relationship as being fiduciary. E.g., Thorpe v. Board of Examiners in Veterinary Medicine, 104 Cal. App.3d 111, 163 Cal. Rptr. 382, 8 A.L.R. 4th 216, 222 (1980)–a veterinarian is a fiduciary as far as the care and protection of client’s animal is concerned. See also Hume & Liechty Veterinary Associates v. Hodes, 259 Ill. App.3d 367, 197 Ill. Dec. 977, 632 N.E.2d 46, 48 (1994).

Ownership to Guardianship? (cont.)

To whom would the veterinarian owe the fiduciary duty? Animal, guardian or both?

Who determines what is in the “best interest of the animal”? The guardian, the veterinarian or both? What if there is a conflict between the guardian and the veterinarian about what is in the “best interest of the animal”?

Ownership to Guardianship? (cont.) Tort claims by animals? While animal owners can

recover various damages from a veterinarian for malpractice, if animals are no longer property can animals through a “next friend & guardian” now assert their own claims for their injuries or damages? E.g., Oberschlake v. Veterinary Associates Animal Hospital, 2003 Ohio 917, 2003 WL 586528, 2003 Ohio App. LEXIS 853 (Ohio App. 2nd Dist. 2003); N.Y. A.B. 6340 & S.B. 2791 and Mass. S.B. 932.

Could a parent animal assert a wrongful death claim against a veterinarian for the death of an offspring [like a human parent could the death of a child]?

Ownership to Guardianship? (cont.)

Disciplinary complaints by animals? Like with tort actions, could an animal by and through “a next friend and guardian,” file a disciplinary complaint with the Board of Veterinary Medicine?

Valid “veterinarian-client-patient relationship” Does the definition of a valid “veterinarian-client-patient relationship” need to be altered if the client, by law, is no longer the owner of the animal? If so, how?

Ownership to Guardianship? (cont.)

Will the classification of animal guardian apply only to companion animals or to all domesticated animals? If animal guardianship only applies to companion animals, which domesticated animals are to be considered incapable of ownership as compared to those animals which may still be owned? How is a veterinarian to determine which animals a client can own as compared to those animals the client can only be a guardian of?

Ownership to Guardianship? (cont.)

Some states have registries of guardians / conservators--May a veterinarian deal with a “guardian” who is not registered with the State Registry? E.g., California Probate Code §§ 2850 - 2856. What, if any, obligations will a veterinarian have to determine if [1] the animal guardian must be registered with the State Registry and/or [2] to check with the State Registry to determine the animal guardian’s registry, before providing or continuing to provide veterinary care to the animal?

Who is responsible for the bill for veterinary service?

Ownership to Guardianship?--Consent to Treatment or Non-Treatment?

If animals are no longer property but rather, wards of a guardian, by what standards will a veterinarian’s obligations to advise about treatment or obtain consent to treatment or non-treatment be governed? “Best interest of the animal” a la “best interest of the child?”

If “best interest of the animal” is the standard in determining the veterinary treatment or care to be provided, what objective criteria is to be used in determining what is in the “best interest of the animal?” How is it in the “best interest” to euthanize a healthy animal?

Ownership to Guardianship?--Consent to Treatment or Non-Treatment? (cont.)

Does the informed consent doctrine need to be modified if the client is no longer the owner but a guardian?

If a veterinarian believes a guardian’s non-treatment or minimal treatment of the animal will not be in the animal’s best interest, will the veterinarian be required to file an action with a court to determine if the veterinarian should provide treatment or additional treatment to the animal contrary to the guardian’s instructions to the veterinarian?

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Ownership to Guardianship?--Suspected Animal Abuse

If animal owners become guardians, can a veterinarian decline, indeed even be required, to refuse to return an animal to a guardian whom he or she suspects might be abusing or neglecting the animal?

Will a veterinarian be subject to disciplinary action if he or she returns an animal to a guardian whom the veterinarian suspects is abusing or neglecting the animal?

Ownership to Guardianship?--Abandoned Animal Notices

Is an abandoned animal notice to an animal guardian that an animal will be deemed abandoned within a certain time, still legally sufficient for a veterinarian to obtain possession of an animal?

If a veterinarian does obtain possession of an animal via an abandoned animal statute, what is the veterinarian’s legal relationship with regard to that animal? Owner? Guardian? Creditor? Lienholder with possession of the animal as security for an unpaid bill?

Ownership to Guardianship?--Abandoned Animal Notices (cont.’)

If a veterinarian does obtain possession of an animal via an abandoned animal statute can he or she thereafter put the animal down even if the animal is healthy and/or it would not be in the “best interest of the animal?”

Can the veterinarian allow the animal to be adopted by another person?

If the animal is deemed abandoned, must the veterinarian obtain a court decree that he or she is now the animal’s guardian?

Ownership to Guardianship?Veterinary Liens

Can a veterinarian have a lien on an animal that the person who presented the animal to the veterinarian did not own?

Can a veterinarian continue to retain possession of an animal and even dispose of it (put it down) if the guardian does not pay the bill for veterinary service?

Ownership to Guardianship?Veterinary Privilege / Confidentiality

Presently, it is the client who holds the veterinarian-client privilege. Who holds the veterinarian-client privilege if the client is no longer the owner of the animal?

Can a veterinarian release veterinary medical records or information contrary to the directions of a guardian because the veterinarian has determined it is in the “best interest of the animal” to do so?

Can a veterinarian not release veterinary records or information contrary to the guardian’s directions because the veterinarian has determined it is not in the “best interest of the animal” to do so?

Ownership to Guardianship?Medicines / Controlled Substances / Biologics

Under federal and state laws, can a veterinarian issue, prescribe or dispense a prescribed medicine, controlled substance or biologic to a person who is not the owner of an animal?

Do federal and state drug laws need to be amended if it become animal guardianship rather than ownership?

Ownership to Guardianship?Government Inspection / Quarantine of Animals

There are numerous federal and state laws governing inspection and quarantining of animals and obligations of veterinarians in carrying out those laws. If animals are no longer property, what provisions of these laws might need to be altered?

Ownership to Guardianship?Third-Party Intervention

If animals are no longer property of an owner but wards of a guardian, can some person intervene and assert the guardian’s decisions on veterinary care and treatment, is not in the “best interest of the animal?”

Can some person intervene and assert the guardian’s care of the animal and/or the veterinarian’s treatment is not in the “best interest of the animal?” That by following guardian’s decision, the veterinarian is not acting in the “best interest of the animal?”

Ownership to Guardianship?Principles of Veterinary Medical Ethics

What provisions of the Principles of Veterinary Medical Ethics might need to be altered if the client is no longer the owner of the animal but now its guardian?

Would the Principles of Veterinary Medical Ethics have to contain provisions on what a veterinarian’s ethical obligations viz-a-via [1] the animal and [2] the guardian who does not own the animal who has been presented for treatment? If so, what should those ethical obligations be?

Ownership to Guardianship?Principles of Veterinary Medical Ethics

Would the Principles of Veterinary Medical Ethics have to address what a veterinarian’s ethical obligations are if he / she believes the guardian’s directions as to care or treatment (or non-treatment) of an animal are not in the best interest of the animal? If so, what should those ethical obligations be?

Ownership to Guardianship?Other Professionals

What additional obligations, if any, might there be if a veterinarian refers an animal to a non-veterinary professional (e.g., chiropractors, physical therapists, etc.) for treatment?

Ownership to Guardianship?Treaties

American Veterinary Medical Law Association, Ownership of Animals vs. Guardianship of Animals: The Effect of a Change in the Law on Veterinarians in California, Vol. 56, No. 3, California Veterinarian (May - June 2002). Available at: <www.cvma.net>

Pet Owners in San Francisco Become “Pet Guardians”: Advocates Say the Terms Promotes Animal Welfare, But Critics Worry it Opens the Door for Lawsuits, Vol. 222, no. 5 J.A.V.M.A. (March 1, 2003).

Ownership to Guardianship?--Treaties (cont.’)

Steven M. Wise, Rattling the Cage: Toward Legal Rights for Animals (Cambridge, Mass.: Perseus Books, 2000).

Steven M. Wise, Wrongful Death of a Companion Animal, 4 Animal Law 33 (1998).

Animal Law Classes in Law Schools

“Today, Harvard and 25 other law schools in the U.S. have introduced law courses on animal rights, and an increasing number of cases representing the rights of animals are entering the court system.”

Comment, Man and Other Animals: Our Fellow Creatures Have Feelings - So We Should Give Them Rights Too, The Guardian, (August 16, 2003) <www.guardian.co.uk>

Animal Law Classes (cont.) Ingham, Laws of Animals: A Treatise on

Property in Animals, Wild and Domestic, and the Rights and Responsibilities Arising Therefrom (November 2003)

Waisman, et al., Animal Law: Cases and Materials (2002)

Wynn, It’s the Law: Pets, Animals and the Law (2001)

Dolan, Introduction to Laboratory Animal Law (2001)

Animal Law Classes (cont.) Curnutt, Animals and the Law: A

Sourcebook (2001) Radford et al., Animal Welfare Law in

Britain: Regulation and Responsibility (2001)

Jasper, Animal Rights Law (1997) Fano, Lethal Laws: Animal Testing,

Human Health & Environmental Policy (1997)

Brooman et al., Laws Relating to Animals (1997)

Animal Law Classes (cont.)

Spiegel, Dreaded Comparison: Human and Animal Slavery (1997)

Patterson, Eternal Treblinka: Our Treatment of Animals and the Holocaust (2002)

Animal Rights in Europe

The Federal Republic of Germany in 2002 became the first European nation to recognize animal rights in its constitution.

Lawmakers in the lower house of the German Bundestag (parliament) voted 534 to 19 to add the “and animals” to a constitutional clause obliging German states to respect and protect the dignity of Germans.

Pet Trusts: Approximately 20 states recognize pet trusts. Likely to grow now that the Uniform Trust Code has a pet trust provision.

“(a) A trust may be created to provide for the care of an animal alive during the settlor’s [person who creates trust] lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor’s lifetime, upon the death of the last surviving animal.

“(b) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.

Pet TrustsUniform Trust Code (cont.)

“(c) Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use may be distributed to the settlor, if then living, otherwise to the settlor’s successors in interest.” (Italics supplied.) Kan. Stat. Ann. § 58a-408--effective January 1, 2003.

PET TRUSTS - WHO IS THE CLIENT ?

The individual who presents the animal? The pet trust? The trustee of the pet trust? A probate estate or a conservatorship? Who or what entity is responsible for the bill? Affect upon insurance coverage? Who may consent to or decline treatment? Who may consent to release of veterinary medical

records & information? To whom may records or information be released?

WHO IS THE CLIENT ? (cont.) Veterinarians practicing in states with pet trust laws

should ask clients if the animal is the subject of a trust?

If animal is covered by a trust, veterinarians should get a copy of the trust?

Trust document may indicate what the trustee can and cannot do about the animal? [E.g., limitation on euthanasia?]

Trustee conflict of interest? Consider having the trustee personally guarantee

the trust’s obligation to pay veterinarian?

GREGORY M. DENNIS Kent T. Perry & Co., L.C.

7300 West 110th Street, Suite 260

Overland Park, Kansas 66210-2387

Tel: (913) 498-1700; Fax: (913) 498-8488

E-mail: Leongatha@aol.com

American Veterinary Medical Law Association

511 North Country Ridge Court

Lake Zurich, Illinois, 60047-2824

Tel: (847) 719-1810; Fax: (847) 719-1810

E-mail: wernette@xnet.com

Web: www.avmla.org