Sentimental value coming to a court near you

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As I write this, litigation is taking place in Texas that brings the issue of damages from "Pain and suffering" back to the front burner of animal law.

As I write this, litigation is taking place in Texas that brings the issue of damages from "pain and suffering" back to the front burner of animal law. Specifically, consider the decision of the Texas Court of Appeals (Fort Worth) in the matter of Medlen v. Strickland decided in November 2011.

In summary, Kathryn and Jeremy Medlen's dog escaped from their yard and was later picked up by animal control. The owners went to the shelter to claim their dog but it had been euthanized by mistake prior to their arrival. Defendant Strickland was the shelter employee who negligently marked the Medlen dog for euthanasia. (The owners had called well ahead of the erroneous euthanasia to let the shelter know they were coming to pay the fine and reclaim the dog.)

The Medlens sued the employee, asking for not only the "market value" of the dog but also damages based on "sentimental value." The trial court denied these noneconomic damages based on two legal principles established in Texas since the 19th century: 1) Dogs are personal property, and sentimental-value recovery is not available for personal property except in unique, legally defined instances, and 2) Texas case law does not provide that dogs are one of the types of personal property qualifying for such special damages.

The Texas Court of Appeals overturned the trial court's refusal to allow sentimental-value damages and remanded the case back to the trial judge with instructions to allow this type of recovery (damages above the dog's market value).

This case is important for a number of reasons, and it's likely to be written about extensively in legal and veterinary literature. Here are some points that make this seemingly minor Texas appellate decision germane to the average practicing veterinarian.

When judges seem to legislate

In its 2011 opinion in Medlen, the Texas Court of Appeals noted that the Texas Supreme Court (a higher legal authority) established in 1891 that damages for the death of a dog in Texas were limited to the dog's market value. It further mentioned that other Texas Courts of Appeals have followed this precedent.

So why alter the established law? The Fort Worth appellate court in Medlen said that because "[t]he Texas Supreme Court has not dealt directly with the value of a lost pet in 120 years," and since not allowing dogs to be added to the list of property qualifying for sentimental-value damages would ignore "the attachment owners have to their beloved family pets," Texas Supreme Court law would not apply in this case. Essentially, new law needed to be created and applied to this case.

Supporters of this opinion might opine that the original 120-year-old case prohibiting recovery of noneconomic damages for the loss of a dog is too old and that people didn't love their dogs then as much as we do now. Fair enough. I say it's up to the Texas legislature to address that question. What does it mean for the democratic concept of separation of powers when the judiciary in any state decides to legislate from the bench?

Maybe I'm wrong. Maybe there exists some divine statute of limitations that makes it OK for judges to ignore it and/or change it. I hope not. I'm kind of partial to some of those venerable relics like, say, freedom of assembly, religion ... that kind of stuff.

Yet every time I listen to the news, I get the feeling that the separation of powers doctrine must be expiring under that same divine time limit. Seems like the courthouse is the new senate and assembly.

Why sentimental-value damages are important to veterinarians

Noneconomic damages are important to veterinarians because they're important to another group: the legal profession, the ones who stand to gain.

Remember that human-medicine malpractice lawsuits are almost always accepted by lawyers with the understanding that the attorney will receive, as his fee, a percentage of the damage award. This is why when people get hurt, they don't have any trouble finding counsel. Such litigants have their pick of the many malpractice lawyers who advertise on radio, TV, billboards and the sides of buses.

Now envision a world where dog lives, cat lives, horse lives and gerbil lives have a higher pecuniary value under the law after a state legislature says so or a judge interprets old law in some new and creative way. As soon as that happens, pet cases will take on a whole new meaning for the personal injury bar. Clients whose pets experience post-surgical complications will no longer hesitate to call the lawyer whose photo appears on the back cover of the phone book. And when that lawyer gets the call, it will no longer be an annoyance—it will be a cash cow.

So the unreasonable expansion of potential damage awards in animal cases is almost certain to bring with it a higher numbers of lawsuits filed. Further, it would be reasonable to assume that the average damage award will increase as well.

Facing the uncertain future

The Medlen case is only the tip of the iceberg when it comes to courts allowing new causes of action and recovery for veterinary malpractice. That case involved the negligent causing of a dog's painless death and the pain and suffering of the owner resulting from the owner's loss of companionship with that dog.

There are other ways to modify the law of monetary recovery in animal cases. What about malpractice or other negligence that does result in pain and suffering for the patient? Current law specifically provides for such damages to be awarded in human-medicine malpractice law.

Former insurance attorneys (I'm one) are well aware of what happens when damages expand: The quantity and size of settlement offers expand. Insurance companies, faced with high potential legal fees and costs of depositions and pretrial discovery, tend to encourage insured doctors to agree to a settlement offer. When potential jury verdict amounts rise above the coverage limits of doctors' malpractice policies, doctors have a strong incentive to settle (even when they don't feel they did anything wrong).

More settlements mean higher malpractice premiums. Potentially much higher.

What veterinarians can do

One way for veterinarians to become more involved in the debate over non-economic damages in animal cases would be for more of us to run for political office. But there are other ways.

We should implore our local and state veterinary societies to take a position regarding this issue. We need to insist that they keep us apprised of legal developments. The damages issue is important to the legal profession, and it should be no less important to us.

Of course, there's no right or wrong answer on the law for noneconomic damages for animal injury and death. Many veterinarians believe that some damages for pain and suffering for animals should be available. I'm not against allowing such awards myself. But they shouldn't be unlimited, and they shouldn't be enacted by anyone other than a legislative body.

We veterinarians can't afford to ignore this issue. We shouldn't let the world drag us along and let all the decisions be made by others without our input.

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 visit info@veterinarylaw.com.

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