Information is power when it comes to pet 'lemon' laws

I have written here in the past that initial puppy and kitten visits are among the most important for avoiding allegations of professional impropriety and malpractice.

One of the reasons this is true is that a failure to identify a current or ongoing medical problem at the earliest possible time can result in some other practitioner identifying it after the client has invested a great deal of time plus financial and emotional capital in their pet.

Now there are new and developing reasons for us to be especially careful during these initial examinations.

In an increasing number of jurisdictions, state legislatures have been drafting, discussing and passing laws which amount to a "warranty" on newly acquired dogs and cats. This type of legislation operates similarly to state-mandated guarantees of workmanship quality in newly-constructed homes. Collectively, folks frequently refer to this type of government protection for new pet owners as "pet lemon laws."

In response to the widespread media attention focused recently on "puppy mills" and unscrupulous puppy and kitten breeders around the country, state lawmakers have acknowledged that members of the public frequently are "duped" into purchasing an animal that is genetically predisposed to serious health problems (for example, demonstrating severe patellar luxation) or is unfit for sale due to serious respiratory or gastrointestinal disease.

It is incumbent upon practicing veterinarians to become familiar with their local "pet lemon" legislation (or the lack of it).

We have the affirmative obligation, of course, to provide full information and disclosure to our clients concerning the health of their pets. But beyond that, it is important to our own self interest that we identify potential problems with newly acquired pet animals and that we be knowledgeable about the owners' available legal redress.

We owe it to ourselves to be aware of any and all potential sources of payment to cover the services we may render to a "lemon" dog or cat.

There are a number of fundamental issues to be considered as we each study the pet lemon laws which prevail in our locales. There also are a number of practical realities to be faced in evaluating the impact these laws may or may not have in a clinical situation.

Time limitations

Pet lemon laws tend to be designed to provide minimal and short-duration economic relief to new pet purchasers. (But note that they may not offer any recourse for individuals who acquire a new pet for free.) In instances where owner relief is provided, there generally is a legal requirement that the new owner have the kitten or puppy examined by a veterinarian within a limited period — usually seven days to a month — in order to establish whether there is a health problem.

Who is covered?

Some states provide lemon law protection only for dogs and/or cats purchased from "breeders" or "dealers." Whether the coverage includes any specific, individual sales transaction may depend on a number of questions, including whether the seller has a license.

Another criterion may be the number of sales transactions a given "breeder" engages in per year. In many instances, when a lawsuit to recover money is instituted, the burden of proof to demonstrate the application of the lemon law is the responsibility of the purchaser, not the defendant breeder or dealer.

Right of action or enforceable repurchase?

Before recommending that a client try to obtain legal redress under a pet lemon law, it is important to know what category of relief is available and what monetary compensation can be expected. Some types of lemon laws require only that, in the event that a veterinarian determines a pet to be unsuitable for sale, the animal be returned for a replacement or a refund of the purchase price.

It may be a statutory offense not to provide the mandated relief to the purchaser.

On the other hand, some states only provide what is known as a statutory cause of action against the seller of a pet that is later found to be "defective."

What this means is that the state will specifically allow the buyer to sue to get his or her money back when a veterinarian has determined the purchased animal to be unfit for sale. Such laws may also shift the burden of proof to the seller to demonstrate why relief should not be given by the court.

The difference between these two types of laws is important.

If a breeder or dealer in pets fails to follow the law in a state where there is mandatory reimbursement, the failure to provide such may be a legal violation with a penalty, such as a fine.

Repeated offenses could lead to the loss of a state-issued dealer's license.

A statutory cause of action is much weaker protection. This type of law merely provides the buyer the legal right to sue the pet's seller in court. It amounts to a sort of "state-provided" mini-warranty imposed upon the seller.

In these cases, relief is obtained only by having the pet purchaser sue the dealer if a defect in the purchased pet is identified. This protection has several additional weaknesses:

• TIME AND COST. Filing a lawsuit is a pain in the neck. It involves lost time from work, filing fees and other costs. Meanwhile, vet bills may continue to pile up which may or may not be fully recoverable under the lemon law even if the suit is successful.

• JURISDICTION. Many courts have minimum economic jurisdictional limits which might be for amounts over $2,500. Some purchased pets may cost that much, but most don't, and if the value is lower than the jurisdictional limit, litigants are limited to suing in Small Claims Court.

Since everybody and their brothers can (and do) sue for every conceivable injustice, the trial experience can be very frustrating, time-consuming and tedious.

• ENFORCEMENT OF JUDGMENTS. It is one thing to win a pet lemon law case in small claims or another civil court, but it's another to get the judgment enforced. Usually, the winning pet owner wants two things: First, he wants the seller to take the pet off his hands. And the owner usually wants his money back (plus awarded fees and expenses).

Truth is, unless the pet purchaser/judgment creditor has connections in high places, it can be very slow and potentially costly to convert a money judgment rendered by a court into real cash.

A final word to colleagues

I recommend three things with respect to pet lemon laws:

1. Know what you are talking about or get a current copy of the law to hand to clients looking for redress.

2. Get a significant deposit prior to undertaking treatment of a "lemon" pet if at all possible. Purchasers of these animals often have a way of leaving them at the veterinarian's offices indefinitely.

3. If possible, direct the pet owner back to the seller at once rather than instituting hospitalization. Once the cost of care exceeds the price of the animal in your hospital, you may be foolishly gambling with a perpetually increasing account receivable.

Dr. Allen is president of the Associates in Veterinary Law P.C., which provides legal and consulting services to veterinarians. Call (607) 754-1510 or e-mail info@veterinarylaw.com