Emotional damages debate headed to high court

FORT WORTH, TEXAS — The Texas Supreme Court will be asked to decide if non-economic damages should be awarded in a mistaken euthanasia case.

Veterinarians fear the recent decision from the Texas' Second District Court of Appeals allowing for the recovery of sentimental value could set a negative precedent that would drive up veterinary malpractice costs.

The Texas Veterinary Medical Association (TVMA) vows to support a Texas Supreme Court appeal of a decision handed down in November allowing the owners of a dog accidentally euthanized in a local shelter to recover the dog's sentimental value.

"Because of the special position pets hold in their family, we see no reason why existing law should not be interpreted to allow recovery in the loss of a pet, at least to the same extent as any other personal property," the panel of three appelate judges wrote in their decision.

"Our feeling is that there's deeper, unintended consequences that could result from this type of ruling," counters Elizabeth Choate, JD, director of government relations/general counsel for TVMA. Choate says the association is worried the decision could drive up the cost of care for pet owners and the cost of doing business for veterinarians.

Some states previously have ruled in favor of awarding non-economic damages for pet loss. For example, Hawaii and Louisiana briefly had rulings allowing damages for sentimental value, but they were ultimately reversed or thrown out, says Greg Dennis, a Kansas-based attorney specializing in veterinary law. Florida also allowed non-economic damages, but the state's Supreme Court eventually determined a lower court's ruling was no good.

To fend off the latest threat, TVMA filed a motion for reconsideration in this case, asking the Texas appellate court to reconsider its decision with a full panel of judges, but the motion was denied, Choate says.

So the ruling stands, for now, Dennis says. But probably not for much longer.

The next step, Choate explains, is to appeal the case to the Texas Supreme Court. Choate says she isn't sure how involved TVMA will get in the appeal—whether it will work with the appellee's legal team or help finance the case—but she says the association will be involved.

Dennis says he doubts the case will go far in Texas' typically conservative Supreme Court.

"I think if that got in front of the Supreme Court in Texas, it would have a hard time," Dennis says.

Nevertheless, it's a case veterinary groups are taking seriously.

The case

The case began after Kathryn and Jeremy Medlen's dog, Avery, escaped from their backyard on June 2, 2009. The dog was picked up by animal control, but when Jeremy went to retrieve the dog, he didn't have enough money. He was told he could return by June 10 with the fee and the dog would be held with a tag on his cage notifying shelter employees that the dog should not to be euthanized. On June 6, the shelter worker Carla Strickland mistakenly placed Avery on a list to be euthanized the following day. When the Medlens returned to collect Avery, they found out he had been euthanized. The couple sued the shelter worker alleging that "her negligence proximately caused Avery's death," according to court records. They sued for Avery's sentimental or intrinsic value. The trial court ordered the Medlens to file for damages recognized by law, and the couple amended their claim for "intrinsic damages" only. The trial judge dismissed the lawsuit.

The Medlens argued in their appeal that the Texas Supreme Court has repeatedly said that damages could be awarded for personal property with little or no market value based on its intrinsic or sentimental value.

"Because an owner may be awarded damages based on the sentimental value of lost personal property, and because dogs are personal property, the trial court erred in dismissing the Medlens' action," the lawsuit argues.

The case may now return to the trial court, where Strickland can file a motion to dismiss on the grounds of governmental immunity, according to court records.

The implications

No one is arguing that pet owners don't feel loss over the wrongful death of a pet, but awarding damages based on the emotions of that loss can have a devastating effect on the veterinary profession, argues Choate.

"Veterinarians certainly understand the deep grief and pain felt when someone loses a pet, because they are often an irreplaceable part of the family. However, allowing that grief to make changes that have vast unintended consequences will do nothing but complicate care, tie up our courts and cause more distress and expense through expanded diagnostic testing," she says of the appeals court's decision.

"Unless overturned, the court's decision will lead to uncertainty for anyone who cares for animals, whether it is the local child who walks the neighbor's dog or a doctor of veterinary medicine. If left to stand, this decision may require veterinarians to practice medicine in a more defensive manner thereby eroding the trust between a veterinarian and client. The cost of doing business may increase as veterinarians are forced to obtain expensive insurance policies to cover their additional liability exposure."

If upheld, the Texas decision wouldn't be binding authority in a case in another state, but could be used as persuasive authority, Dennis explains.

"You could cite this Texas decision and argue to the court in your state," he says. A court in another state would not be required to concur, but the decision may help to sway another court's opinion.

But Texas has a long history—dating back to 1891—of ruling against non-economic damages in pet deaths, he says. The Texas Supreme Court might be hesitant to overturn 120 years worth of decisions, he adds.

Appellate courts often turn matters such as this over to state legislatures, rather than make policy-changing rulings, Dennis explains. The decision now opens doors to new problems for the veterinary profession.

"How do you write a malpractice liability policy in the state of Texas now?" he asks.

Texas courts have already ruled that DVMs are not covered by Texas' human medical malpractice laws, meaning veterinarians can't use the damages cap placed on emotional pain and suffering. Physicians can also appeal to a state fund to pick up the cost of a verdict that exceeds the monetary limits of an insurance policy. Veterinarians can't, says Dennis, adding it has happened to one of his clients who wasn't considered a "healthcare provider" in their state's statutory definition of the term.

Other concerns that come into play with awarding non-economic damages to pet owners is the issue of fairness. In wrongful death actions for humans, there's a limited class of people who can recover damages, and it's limited to bloodlines, Dennis says.

"With animals, you then allow people to allow to recover for an entity that is not a blood relative," he explains. "How do you think that plays for the grandparents who are not allowed by state law to recover for the death of their grandchild?"

Additionally, pet owners seeking to make emotional damages claims are not often informed of the full spectrum of scrutiny they will be subject to during court proceedings.

"Once you make one of those claims, you open up their entire mental history," Dennis says. "And a lot of people I think are being led down the garden path that they can sue for emotional pain and suffering damages without being told that when making that claim your emotional and medical histories are opened up.

"You know they will find things; they always do," he adds. "(To) see a client get cross-examined over having an abortion when she was 17 years old, it's awful."

And there is no standard for what a jury should award in emotional damages cases for pets, Dennis says. A jury may not be as sympathetic to someone who is suffering from pet loss compared to someone who lost a human loved one. Most jurors have had hard knocks in life, says Dennis, and jurors may be put off by a claim for emotional loss over a pet or see it as a personal weakness.

"This is far different from when the mother is standing there watching her child on the front porch being gunned down by a drive-by shooting. That's the kind of emotion people respond to on a jury," he says.

Australia recently adopted a new standard that allows a person to make emotional damages claims for pet loss only if there is medical evidence to prove the distress was caused only by the loss of the animal and nothing else.

"It would be a difficult standard to meet, but it could weed out some filings," Dennis says.

Choate says perhaps decisions like this should be left to the lawmakers instead of courts, since a ruling such as this one leaves so many lingering questions about its impact.

"Such drastic changes to the law should be left to the legislature so that the ramifications can be explored in a public forum. There is no current precedent for how to apply an intrinsic value to a special pet. Does a purebred dog demand a higher sentimental value than a mixed breed, simply on the basis of the original purchase price? Should the owner of a cat who has followed all of her veterinarian's recommendations for wellness care and diet receive a higher compensation than the owner of a cat who did not, or who provides no health care for the animal? Finally, does the species of pet make a difference in value? Should dogs be valued more than cats, or hamsters or goldfish? There are thousands of such questions for which there is no proper answer. To set such ambiguities into law is irresponsible," Choate continues.

"Veterinarians believe that negligence, malice or abuse toward pets should be punished and the perpetrators held accountable. But decisions such as this one could open a floodgate of abuse, fraud and legal entanglements that will only hurt the delivery of care to our pets."