Special Report (June
9, 2006)
Opinion
Law
Courts attach little value to pets
By Kelly J. Kaczala
Press News Editor
They are groomed, dropped
off at day care, fought over in custody disputes, and increasingly
listed among the survivors in obituaries. And when they die, their
bereaved owners are offered grief counseling.
Pets, in many ways,
are considered members of the family. In a 2004 survey, conducted
by the American Pet Products Manufacturers Assocation (APPMA),
74 percent of pet owners considered their pets “like a child
or family member.”
Yet the law lags far
behind that perception.
In Ohio, as in most
states, pets are considered personal property, no more valuable
than a piece of furniture. So when a pet owner files a lawsuit
for veterinary negligence, there's little remedy.
"When a vet has
been found negligent, the damages are limited to the market value
of the animal, which for most animals, can be even zero,"
said Kathy Hessler, a professor of animal law at Case Western
Reserve University, a rapidly growing field. The course is the
only one taught in Ohio.
"Finding a market
value and going beyond that legal remedy for special damages is
a difficult thing to do," she said. "There's no emotional
distress for loss of property. That's an area different states
have been looking at changing and a number of people have been
pushing."
"A lot of people
presume, since the animal is so emotionally valuable to them,
that that would translate into economic value, and it doesn't,"
said David Favre, a professor of law and president of the Animal
Legal and Historical Center at Michigan State University.
Sea change
That may soon be changing,
according to Carolyn B. Matlack, an attorney and managing editor
of Animal Legal News (animallegalreports.net), which offers summaries
of litigation and follows current trends in the field of animal
law.
"The good news
is that people are recognizing this. That's the first step, recognition
that our laws have not caught up to the way we feel about our
animals. This is now quite widely known and will become even more
so," said Matlack.
As more Americans own
pets in increasing numbers, according to studies, Matlack believes
"a sea change" is about to occur as more pet owners
view pets as family.
In the April, 2006
issue of DVM News the American Veterinary Medical Association
(AVMA) notes its opposition to attempts to change laws regarding
pets as more than personal property. To do so would increase medical
costs to animals.
"Any change in
terminology, describing the relationship between animals and owners,
including guardians, does not strengthen this relationship, and
may harm it," says the OVMA. "Such changes in terminology
could adversely affect the ability of society to obtain and deliver
animal services, ultimately resulting in animal suffering."
Matlack doesn't buy
it.
"If they're charged
more as a veterinary community, somewhere in the realm of - God
forbid - human malpractice insurance - they believe that cost
would be passed on to the public. Therefore, fewer people would
be able to bring their animal to the veterinarian, and more animals,
and people, will suffer, because of that. However, in my opinion,
that is completely unrealistic. That's because we are seeing a
sea change. It's like trying to stop Mothers Against Drunk Drivers,
when they first formed - when they were trying to obtain penalties
for drunk drivers maiming or killing their sons and daughters
based on literally horse and buggy laws."
Jack Advent, executive
director of the Ohio Veterinary Medical Association (OVMA), which
represents the interests of veterinarians, does not support changing
the law.
"While to many
this thought may seem innocent, changing the legal status of animals
would have significant adverse consequences for all animals and
their owners," he said. "If a veterinarian practices
inappropriate veterinary medicine, regulatory bodies are fully
empowered to discipline that veterinarian through a variety of
means, including suspension or removal of their license."
He said the OVMA supports
the position of the AVMA, which recognizes and supports the legal
concept of animals as property.
Pressure is mounting
on state legislatures to upgrade the value placed on pets, said
Favre. One way is to set potential ceilings or caps on the amount
of damages that may be awarded to pet owners.
"Everyone talking
about this on the legislative side has suggested a potential ceiling
of no more than $50,000, or no more than $100,000. It's too common
sense to say if something goes terribly wrong, that some level
of reimbursement is appropriate," he said.
"But you don't
have to change the status of animals as property to change the
outcome for negligence or malpractice,” he added. “You
can pass a law that simply says the jury may award up to $25,000
in compensation for pain and suffering to the owner.”
Sentient property
Matlack suggests a
compromise. Pets, she said, could be classified as a higher form
of property that recognizes they have feelings and emotions -
called "sentient," or feeling, property.
"It's my hope
and belief that once judges, animal lovers, legislators, and lawyers,
get a hold of something they can hang their hat on, something
that's a positive solution, that this will facilitate the whole
process-whether it be in court, or at the state legislative levels,"
said Matlack, who recently wrote a book, "We've got feelings,
too: Presenting the sentient property solution," out this
month.
"I would like
to provide a solution, and I've spent years and years researching
what that solution might be - and that's sentient property,"
she said.
What kind of response
has she received from the veterinary community?
The AVMA and the pharmaceutical
association are against any change in the relationship between
animals and their owners, she said, "which I think is unrealistic
and not positive."
Veterinarians need
to step up to the challenge and acknowledge the human-animal bond
exists, she said.
"Veterinarians
tell us we have this bond, and they acknowledge it, and frankly,
they're making increasing amounts of money off that bond,"
she said. "If their leadership is saying deny all forward
progress, but want pet owners to pay $1,000 for chemotherapy treatment,
it's a clash. Veterinarians need to look at their state legislation,
decide on a fair value of a life of an animal. That's one place
to start, then pass that legislation in their state."
Communication
Favre emphasizes the
importance of communication between pet owners and veterinarians
to find a solution when there's a grievance to avoid lawsuits.
"Most people file
lawsuits as a last resort," he said. "They want an acknowledgment
by the vet that they were wrong and want an apology - that it
wasn't right. The truth helps. Many vets absolutely just freeze
up. When it becomes clear that someone is thinking about a lawsuit,
they just shut down and they're not going to talk to you, so there's
no communication."
Conversely, pet owners
may not have valid complaints, he said.
"Just because
a pet dies at the vets office doesn't mean they did something
wrong," he said.
If communication fails,
complaints can be filed with state veterinary licensing boards,
which oversee the veterinary profession. Vets can be disciplined,
and in rare cases, have their licenses revoked.
"Every state has
them," said Favre. "Some states treat complaints more
seriously than others. At least there would be a public record
of a complaint. That often makes pet owners feel better. They've
now warned the world about someone who's apparently not doing
good things."
Until laws catch up
to the public's concept of pets as family, animal law courses
are filling up rapidly with students who are preparing for the
inevitable, said Hessler.
"It's been an
area of growing interest in the bar," she said. "Every
year I also have requests from attorneys to take the class. Right
now, we haven't got room for them. So, both here in Ohio and across
the country, there used to be only a handful of law school courses
about 10 years ago. Now, I believe it's up to 50 schools offering,
in some form or another, an animal law course," she said.
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