It was only in the middle of the last century that the term “malpractice” even applied to veterinarians in many states. Even now they are not considered in many state malpractice statutes and therefore are not frequently subjected to malpractice suits. Recently, however, more and more veterinarians are finding themselves in the middle of lawsuits brought forward by pet owners regarding the care of their beloved pet. As the value of animals increases from the “market value” to cost of veterinary care the number of malpractice claims will likely increase against veterinarians.
“The AVMA recognizes and supports the legal concept of animals as property. However, the AVMA also recognizes that some animals have value to their owners that may exceed the animal’s market value. In determining the real monetary value of the animal, the AVMA believes the purchase price, age and health of the animal, breeding status, pedigree, special training, and any particular utility the animal has to the owner should be considered” (see JAVMA, July 1, 2003, pg. 15).”
An internet search conducted on pet injury cases in May 2015 found three recent cases in California that were cited by at least two law firms, and the Animal Legal Defense Fund (ALDF) that focused on the “value” of animals. The rulings in these cases determined that damages for injury to domestic pets are not limited to the market value of the animals and owners may attempt to recover the “reasonable and necessary costs” for the care on an injured pet. In the past, damages for injury or harm to animals that are considered a pet have been limited to the value of that animal. Historically pets have been viewed as property and as property only their market value was recoverable.
However, several recent cases in California have adopted a different rule for domestic pets. According to the law firm “Fishman, Larsen, and Callister” on their website www.flgz.net at least one case “appears to be based in part on the premise that animals should be treated differently from other forms of property because of their ‘sentient’ nature.”
Fishman, Larsen, and Callister summarized the outcome of case Kimes v. Grossner(2011) 195 CA4th 1556. “The plaintiff claimed that his cat “Pumpkin” had been shot with a pellet gun while perched on the fence to his property. The plaintiff incurred $6000.00 in veterinary bills. In addition, because the cat was partially paralyzed the Plaintiff incurred an additional $30,000.00 in bills for caring for the cat. The Plaintiff sued for his veterinary bills and the cost of caring for the cat, as well as punitive damages. The Defendant tried to have the case dismissed arguing that the cat was simply a stray cat which had been adopted by the Plaintiff and had no monetary value. The Court held that the economic value of the animal was not the appropriate measure damages in this instance, and the cost of veterinary bills and care was a reasonable basis for calculating damages. In addition, because of the alleged intentionally wrongful conduct of the defendant, the Court allowed punitive damages.”
Other recent California cases (Workman v Klause and Martinez v Robledo in 2012) were cited by Fishman, Larsen, and Callister Attorneys at Law, ALDF, and Hamrick & Evans, LLP on their websites as a consolidation of two cases. The first case, Workman v Klause, was a veterinary malpractice case. A veterinarian performed surgery on a golden retriever named “Katie”, but “nicked the animal’s intestine” and left gauze inside the dog. When the owner realized their dog was not improving after the surgery, they took the dog to an animal emergency hospital where they spent close to $37,000.00 in additional medical costs to save their dog’s life. The veterinarian in this case based their defense on the grounds “that the additional medical costs that the Plaintiff had incurred exceeded the value of the animal (estimated by the parties at $1000.00).”
The second consolidated case in Martinez involved a German shepherd named “Gunner”. Gunner escaped from his owner’s property, went onto a neighbor’s property and began barking at the neighbor’s dog. The neighbor shot the dog claiming that they were defending themselves from a vicious dog. Gunner had to have his leg amputated as a result of the gunshot and the veterinary bills totaled around $21,000. The Court of Appeals, agreed with the ALDF’s briefs and reversed the initial trial limitations of limiting damages to market value. The Court ruled that both Plaintiffs were entitled to pursue their claims for the cost of their veterinary bills.
According the Fishman, Larsen and Callister’s website the court’s ruling in Kimes case can “arguably be justified under existing California law. Assuming that the act of shooting the cat was intentional, punitive damages might be available under normal legal doctrines for intentional infliction of emotional distress to the animal’s owner. Separately while the veterinary bills and the cost of caring for a paralyzed cat seem excessive, those damages also might be warranted as compensation for intentional misconduct in deliberately shooting a pet.”
According to Fishman, Larsen and Callister’s website in the Martinez case the court stated that “the establishment of animal protection laws in California shows that “the Legislature has recognized … that animals are special, sentient beings…” Separately the Court stated that “given the Legislature’s historical solicitude for the proper care and treatment of animals, and the array of criminal penalties for the mistreatment of animals, as well as the reality that animals are living creatures, the usual standard of recovery for damaged personal property – market value -is inadequate when applied to injured pets”.
These cases changed the landscape of existing California law and perhaps laws in many other states to come. Clearly, the message has been sent that animals are more than property and recovery of market value or replacement value is inadequate when applied to a person’s pet. Attorney firm Fishman, Larsen, and Callister suggest that these cases establish a “new standard of damages for injury to domestic pets” to include the cost of their veterinary care. Additionally, the Martinez case “appears to establish a new negligence standard for liability for veterinary care, or at least a new and higher measure of damages for negligent veterinary care in the pet industry.” Hamrick and Evans, attorneys at law suggest that these cases “add to the growing body of law in California recognizing that an animals value cannot be equated with ‘traditional’ forms of personal property.” The ALDF senior attorney Matthew Liebman called this decision a “significant step forwards for companion animals and their guardians. The legal system is finally starting to catch up with how the majority of people feel about the animals with whom they share their lives.”
Existing case law in other California appellate districts still limits damages for injury to domestic pets to fair market value. It remains to be seen whether or not these recent cases will stand up over the course of time because of the conflict with other California laws. These cases changed the landscape of existing California law and perhaps the laws in many other states to come. According to the ALDF other states such as Florida, Illinois, New York, and Kansas have allowed for recovery of veterinary bills in suits filed against veterinarians. Clearly, the message has been sent that animals are more than property and recovery of market value or replacement value is not adequate when it comes to a person’s pet. Pets should not be treated the same way as a damaged bicycle or piece of furniture.
In 2006, the Montana Law Review estimated there were 2,000 cases of veterinary malpractice in filed in U.S. courts. The actual number of claims veterinarians filed with their insurance carriers is proprietary and therefore those numbers are not known. According to AVMA PLIT, “the frequency of claims rose from one claim every twenty- five year veterinarians in 1983, to one claim for every sixteen veterinarians in 1993.” The article suggested that malpractice litigation against veterinarians increased over 300% in just 5 years.
Settlements in the 1980’s rarely exceeded $1000 but by the 1990’s the Jury Verdict Research group reported awards between $5,000 and $35,000 over a four year period in California, Alabama, Connecticut, Kentucky, Michigan and Utah. The new, higher measure of damages for veterinary negligence may drastically increase the cost of malpractice insurance for veterinarians.
Cost of malpractice insurance for physicians versus veterinarians is markedly different. Most of this difference can be attributed to the ability of people to file lawsuits against physicians for any number of perceived infractions. According to a survey published November 2011 in “Modern Medicine,” family and general practitioners paid premiums of $12,100, and pediatricians’ premiums averaged $11,800. OB-GYNs paid an average of $46,400, and plastic surgeons reported median premiums averaging $30,000. Compare that to veterinarians who are paying between $250- $1000 annually and it is clear to see the financial impact lawsuits will have if owners can recover veterinary costs due to negligence.
There are 98,900 licensed veterinarians in the United States according to the 2013 U.S. Veterinary Workforce Study: Modeling Capacity Utilization by the AVMA. If 45% of all veterinarians made just 1 mistake a year and, of those errors 25% resulted in a lawsuit, that would equate to over 11,000 lawsuits a year. If errors are recorded and shared throughout the profession then solutions to these errors could reduce veterinary medical mistakes and in turn reduce lawsuits brought against veterinarians.
The trickle down effect of lawsuits and malpractice claims may mean that the cost of veterinary care will rise to cover the increased cost of practicing veterinary medicine. This may translate into more owners making tough decisions on the affordability of care for their pet. If people opt of out care for their pet due to the expense this too could have a deleterious effect on the veterinary profession.
According to the AVMA In 2011, there were approximately 70 million pet dogs in the U.S. and 74.1 million pet cats. Approximately 63% of pet owners considered their pets to be family members. The average dog owner spends about $227 a year on their pet’s care while cat owners spend about $90 per year. By 2014 the American Pet Products Association estimated that number to be 83.3 million pet dogs and 95.6 million pet cats. The spending on veterinary care of these pets was estimated at $14.3 billion. If medical errors occur frequently enough in veterinary medicine to convince even a fraction of owners to decrease spending then that estimated 14.3 billion dollars in spending could quickly swing the other way.