Client Emotional Pain & Suffering Claims
Against Veterinarians and Ownership vs.
Guardianship of Animals
Gregory M. Dennis
Twelve-States Veterinary
Leadership Forum
Breckenridge, Colorado
October 24, 2003
Most States Do Not Allow Emotional Pain &
Suffering or Loss of Companionship Damages
for Negligent Loss of or Injury to a Pet
While there has been considerable publicity of late about
trial courts allowing pet owners to sue for emotional pain &
suffering damages, state appellate courts have generally been
refusing to recognize these claims when negligence or
malpractice is alleged.
Oberschlake v. Veterinary Associates Animal Hospital, 151
Ohio App.3d 741, 785 N.E.2d 811 (2nd Dist. 2003)--rejecting
[1] owners’ emotional pain & suffering claim and [2] dog’s pain
& suffering claim against a veterinarian brought by his “pet
guardians.”
New York A.B. 6340 & S.B. 2791 (2003-04) &
Massachusetts S.B. 932 (2003 & 04)
“Damages…for injuries sustained by a companion
animal shall be recovered in an action in tort brought
by a guardian ad litem or next friend appointed by
the court….”
“Damages so recovered shall be payable into a trust
for the care of the companion animal, which trust
shall be enforceable for the life of the companion
animal by a person appointed by the court. Any
remainder of trust funds existing at the death of the
companion animal shall be distributed to a non-profit
organization dedicated to the protection of
companion animals.”
110 + Years of Emotional Distress,
Sentimental Value and/or Loss of
Companionship Claims Viz-a-Via Animals
Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931 (1891)--horse
owner not allowed sentimental value for loss of horse.
Klein v. St. Louis Transit Co., 117 Mo. App. 619, 93 S.W. 281
(St. L. 1906)--dog owner not allowed to recover damages for
its mental suffering caused by a railroad having lost its dog.
City of Canadian v. Guthrie, 87 S.W.2d 316 (Tex. Civ. App.
1932)--horse owner not allowed sentimental value damages for
loss of horse.
Wilcox v. Butt’s Drug Stores, 38 N.M. 502, 35 P.2d 978, 94
A.L.R. 726 (1934)--no sentimental value damages for druggist
erroneous prescription causing dog’s death.
Before the 1990s Only Florida, Hawaii &
Louisiana Allowed Emotional Distress
Damages for Loss of Animals
Campbell v. Animal Quarantine Station, Etc., 63 Haw. 557,
632 P.2d 1066 (1981)--mental distress claim could be made for
death of family pet.
Peloquin v. Calcasieu Parish Policy Jury, 367 So.2d 1246 (La.
App. 1979)–plaintiffs could seek damages for, among other
things, mental anguish, inconvenience and humiliation
attributable to loss of their cat.
Knowles Animal Hospital, Inc. v. Willis, 360 So. 2d 37 (Fla.
App. 1978) cert. denied 368 So.2d 1369 (Fla. 1979)--trial judge
did not err in a veterinary malpractice action by allowing the jury
to award damages to dog owner for its mental pain & suffering.
Rees v. Flaherty, 2003 Conn. Super. LEXIS 289 (2003)--not
allowing negligent infliction of emotional distress claim against
a person who had boarded a dog.
Hawkins v. Harney, D.V.M., 2003 MT 58, 2003 Mont. LEXIS
63 (2003)--dismissing dog owner’s lawsuit for emotional
distress because of owner’s violation of discovery procedures.
Lockett v. Hill, 182 Or. App. 377, 51 P.3d 5 (2002)--declining
to accept Steven M. Wise’s “quasi-children” contention for
pets.
Ammon v. Welty, 2002 WL 1488673, 2002 Ky. App. LEXIS
1400 (2002)--declining to recognize loss of companionship
claim for death of a dog.
Lewis v. Di Donna, 294 App. Div.2d 799, 743 N.Y.S.2d 186
(2002)--dog owner could not make a loss of companionship
claim for druggist’s mis-prescription.
McAdams v. Faulk, 2002 WL 700956, 2002 Ark. App. LEXIS
258 (2002)--[1] deceased dog could not maintain
malpractice action against veterinarian but [2] dog owner
could make a claim for its emotional pain & suffering.
Holbrook v. Stansell, 254 Ga. App. 553, 562 S.E.2d 731
(2002)--no claim for negligent emotional distress having
witnessed dog attack and injure a foal that later put to sleep.
Harabes v. The Barkery, Inc., 348 N.J. Super. 366, 791 A.2d
1142 (2001)--rejecting emotional pain & suffering damages for
negligent death of dog.
Koester v. VCA Animal Hospital, 244 Mich. App. 173, 624
N.W.2d 209 (2000) appeal denied 631 N.W.2d 339 (2001)-declining to allow a claim for emotional pain & suffering in a
veterinary malpractice action.
Soto v. U.S.A., 2001 U.S. Dist. LEXIS 10743 (W.D. Mich. 2001)
aff’d in part & rev’d in part on other grounds 2003 U.S. App.
LEXIS 7292 (6th Cir. 2003)--no liability for I.N.S. intentionally
killing a dog during a raid.
Johnson v. Douglas, 187 Misc. 2d 509; 723 N.Y.S.2d 627
(2001)--no claim for emotional distress having seen dog run over.
Rabideau v. City of Racine, 243 Wis.2d 486, 627 N.W.2d 795
(2001)--no liability for police officer intentionally shooting and
killed dog in front of its owner.
Fackler v. Genetzky, 257 Neb. 130, 595 N.W.2d 884 (1999)
appeal after remand 263 Neb. 68, 638 N.W.2d 521 (2001)-emotional pain & suffering for loss of two horses not allowed;
veterinary malpractice action.
Zeid v. Pearce, 953 S.W.2d 368 (Tex. App. El Paso 1997)-emotional pain & suffering claim not allowed; veterinary
malpractice action.
Nichols v. Sukaro Kennels, 555 N.W.2d 689 (Iowa 1996)-negligence claim for emotional pain & suffering not allowed
for dog that was mauled to death at a kennel
Jason v. Parks, 224 App. Div.2d 494 , 638 N.Y.S.2d 170
(1996)--New York did not allow emotional pain & suffering
claim; veterinary malpractice action.
Carroll v. Rock, 220 Ga. App. 260, 469 S.E.2d 391 (1996)-trial court made a mistake by allowing pet owner to introduce
evidence of its emotional condition after cat escape from a
clinic.
McDonald v. Ohio State Univ. Veterinary, 67 Ohio Misc.2d 40,
644 N.E.2d 750 (1994)--Ohio does not recognize sentimental
value claims; veterinary malpractice action.
Gluckman v. American Airlines, Inc., 844 F. Supp. 141
(S.D.N.Y. 1994)--New York law does not allow emotional pain
& suffering for negligent loss of an animal.
Langford v. Emergency Pet Clinic, 96 Ohio App.3d 174, 644
N.E.2d 1035 appeal denied 71 Ohio St.3d 1405, 641 N.E.2d
203 (1994)–rejecting intentional or negligent infliction of
emotional distress claim for alleged improper burial of a pet.
Daughen v. Fox, 372 Pa. Super. 405, 539 A.2d 858 appeal
denied 520 Pa. 605, 553 A.2d 967 (1988)--under no
circumstances may there be damages for the loss of
companionship of a pet.
Janovski v. Presser Animal Hospital, Ltd., 157 Ill. App.3d
818, 110 Ill. Dec. 53, 510 N.E.2d 1084 (1987)--dog owner
could not recover for loss of companionship for veterinarian
having negligently caused death of dog.
Julian v. DeVincent, 155 W. Va. 320, 184 S.E.2d 535
(1971)–plaintiff could not recover damages for the
sentimental value of its dog.
IT IS NOT LIMITED TO DOGS &
CATS
Sher v. Countrywide Home Loans, Inc., 2003 Fla. App. LEXIS
10224 (Fla. App. 4th Dist. 2003)--claim for emotional distress
for loss of pet turtles dismissed as pet owner sued wrong party.
Krasnecky v. Meffen, 56 Mass. App. 418, 777 N.E.2d 1286
(2002) rev. denied 438 Mass. 1106, 782 N.E.2d 516 (2003)-rejecting wrongful death and emotional pain & suffering claim
brought by sheep owners.
American Soc. for the Prevention of Cruelty to Animals v.
Ringling Bros. et al., 317 F.3d 334 (D.C. Cir. 2003)--former
circus employee allowed to maintain action under the federal
Endangered Species Act for aesthetic and emotional injury
from allegedly having seen elephants mistreated.
Intentional, Outrageous or Malicious Injury
or Killing of Animal Exception
Some states do allow emotional distress damages for an
intentional maiming or killing of an animal or outrageous or
malicious conduct.
Burgess v. Taylor, 44 S.W.3d 806, 91 A.L.R. 5th 749 (Ky. App.
2001)--liability for intentionally killing a horse.
Brown v. Muhlenberg Township, 269 F.3d 205 (3rd Cir. 2001)-Pennsylvania allows emotional distress claim if animal
intentionally killed in the owner’s presence.
Copenhaver v. Borough of Bernville, 2003 U.S. Dist. LEXIS
1315 (E.D. Pa. 2003)--no claim as dog owners did not actually
see the killing of their dog.
Intentional / Malicious Exception (cont.’)
Fackler v. Genetzky, 257 Neb. 130, 595 N.W.2d 884 (1999)
appeal after remand 263 Neb. 68, 638 N.W.2d 521 (2001)-negligence claim against veterinarian for emotional pain &
suffering for loss of two horses not allowed, but Nebraska
leaves open the door to consider in the future if it will allow
such claims for an intentional injury or killing.
In the Matter of Kline (N.J. App. Div. A-1788-95T5, July 12,
1996)--assistance dog owner allowed to apply for mental
distress damages under state Violent Crime Compensation Law
for having seen her dog attacked and stoned.
Intentional / Malicious Exception (cont.’) Miller v. Parana, 426 Pa. Super. 189, 626 A.2d 637 (1993)-in an action for intentional infliction of emotional distress
arising from veterinarian’s alleged beating to death of the
plaintiff’s dog, the veterinarian’s conduct did not rise to the
level of outrageousness necessary to support an award of
damages.
Nelson v. Percy, 149 Vt. 168, 540 A.2d 1035 (Vt. 1987).
Katsaris v. Cook, 180 Cal. App. 3d 256, 225 Cal. Rptr. 531
(Cal. App. 1986).
Gill v. Brown, 107 Idaho 1137, 695 P.2d 1276 (Idaho App.
1985).
Richardson v. Fairbanks N. Star Borough, 705 P.2d 454
(Alaska 1985).
Intentional / Malicious Exception (cont.’)
Banasczek v. Kowalski, 10 Pa. D. & C.3d 94, 1979 WL 489
(Luzerne County, Pennsylvania, 1979).
LaPorte v. Associated Indeps., Inc., 163 So. 2d 267, 1
A.L.R.3d 992 (Fla. 1964).
City of Garland v. White, 368 S.W.2d 12 (Tex. Civ. App.
1963).
Ramey v. Collins, 2000 WL 776932, 2000 Ohio App. LEXIS
2540 appeal dismissed 90 Ohio St.3d 1428, 736 N.E.2d 25
(2000)--rejecting claim that plaintiffs had a constitutional right
of freedom of expression in or association with a family pet.
Treatises Annot., Recovery of Damages for Emotional Distress Due
to Treatment of Pets and Animals, 91 A.L.R. 5th 545 (2001).
Dennis, Emotional Pain & Suffering Damages for Loss of
an Animal Opens the Door to Inquire About the Owner,
Vol. 6, no. 2, American Veterinary Medical Law Association
Newsletter (March 2001).
Sorenson, Life in the Balance--Practitioners, Pet Owners
Grappled with Pivotal Question: How Much is this Animal
Worth? Vol. 11, no. 3 Veterinary Product News 1 (March
1999).
Treaties (cont.’) Wise, Recovery of Common Law Damages for Emotional
Distress, Loss of Society, and Loss of Companionship for
the Wrongful Death of a Companion Animal, 4 Animal Law
33 (1998).
Kay et al., Pet Loss and Human Bereavement (Ames, Iowa:
The Iowa State University Press, 1995).
Note, Liability for the Injury and Destruction of Canines,
26 Fla. L. Rev. 78 (1973).
ACTUAL / REPLACEMENT VALUE TO OWNER,
RATHER THAN FAIR MARKET VALUE, MAY BE
RECOVERED AS DAMAGES
Mitchell v. Heinrichs, 27 P.3d 309 (Alaska 2001)-“Where...there may not be any fair market value for an adult dog,
the ‘value to the owner may be based on such things as the cost
of replacement, original cost, and cost to reproduce.’ Thus, an
owner may seek reasonable replacement costs–including such
items as the cost of purchasing a puppy of the same breed, the
cost of immunization, the cost of neutering the pet, and the cost of
comparable training. Or an owner may seek to recover the
original cost of the dog, including the purchase price and, again,
such investments as immunization, neutering, and training. … it
may be appropriate to consider the breeding potential of the
animal, and whether the dog was purchased for the purpose of
breeding with other purebreds and selling the puppies.” (Italics
supplied.)
ACTUAL / REPLACEMENT VALUE (cont.’)
Mercurio v. Weber, 2003 N.Y. Slip Op. 51036U, 2003
N.Y. LEXIS 801 (2003)--action by a 9/11 widow for loss of dog.
Defendant failed to appear and therefore default judgment
entered. Trial judge ruled plaintiff was entitled to replacement
value of her dog. Also said:
“Pricing companionship is inherently difficult, but since
plaintiff has presented us with a figure that reasonably
approximates the cost of replacing [her dog] ($1,513.58 ), the
court accepts that as the fair market price of [her dog]. Even
though it is substantially higher than what plaintiff paid for [her
dog], the court presumes that it encompasses the loss of
companionship as well.” (Italics supplied.)
Turning to State Legislatures
As state appellate courts have been declining to
allow pet owners to recover emotional pain & suffering
or loss of consortium damages for loss of or injury to a
pet, state legislatures are now starting to be asked look
at the issue and enact legislation.
Already, Illinois and Tennessee have such
statutes.
During 2003, not only Colorado, but also
Massachusetts, New Jersey, New York and Rhode
Island had Bills introduced before them to allow for
emotional pain & suffering, emotional distress, loss of
companionship damages for loss of or injury to a pet /
companion animal.
Turning to State Legislatures (cont.’)
In June 2002, S.B. 1379 was introduced before
the Michigan Legislature that would allow “[t]he
owner of a domestic animal [to] bring a civil action
and recover noneconomic damages up to $250,000.00
for loss of that domestic companion animal caused by
another person’s gross negligence or willful and
wanton misconduct.”
Turning to State Legislatures (cont.’)
Colorado H.B. 03-1260--Would have allowed up to
$100,000.00 in damages; withdrawn from consideration;
possibly to be reintroduced during the 2004 Session.
Massachusetts S. B. 932--No limit for emotional distress or
loss of companionship, society, protection & services damages.
Minimum of $4,500.00 punitive damages for intentionally or
recklessly injuring or killing a companion animal.
Michigan S.B. 1379--up to $250,000.00 in damages referred to
judiciary committee in June 2002, remained there and died.
New Jersey A.B. 3339--Would have allowed up to $500.00 in
damages.
Turning to State Legislatures (cont.’)
New York A.B. 6340 & S.B. 2791--No limit for emotional
distress or loss of companionship, society, protection & services
damages. Minimum of $4,500.00 punitive damages for
intentionally or recklessly injuring or killing a companion
animal. Presently, not likely to pass during current (2003 - 04)
session
Rhode Island H.B. 5817--Would have allowed up to
$10,000.00 in damages; not reported out of the committee by
the deadline date.
Tennessee
Tenn. Code § 44-17-403. Death of pet caused by negligent act
of another – Damages
“(a) If a person’s pet is killed or sustains injuries
which result in death caused by the unlawful and intentional,
or negligent, act of another or the animal of another, the trier
of fact may find the individual causing the death or the owner
of the animal causing the death liable for up to four thousand
dollars ($4,000) in noneconomic damages; provided, that if
such death is caused by the negligent act of another, the death
or fatal injury must occur on the property of the deceased pet’s
owner or caretaker, or while under control and supervision of
the deceased pet’s owner or caretaker.
“(b) As used in this section, “pet” means any
domesticated dog or cat normally maintained in or near the
household of its owner. [Italics supplied.]
“(c) Limits for noneconomic damages set out in
subsection (a) shall not apply to causes of action for
intentional infliction of emotional distress or any other civil
action other than the direct and sole loss of a pet. [Italics
supplied.]
“(d) Noneconomic damages awarded pursuant to this
section shall be limited to compensation for the loss of the
reasonably expected society, companionship, love and
affection of the pet.
“(e) This section shall not apply to any not-forprofit entity or governmental agency, or its employees,
negligently causing the death of a pet while acting on the
behalf of public health or animal welfare; to any killing of
a dog that has been or was killing or worrying livestock as
in [Tenn. Code Ann.] § 44-17-203; nor shall this section
be construed to authorize any award of noneconomic
damages in an action for professional negligence against
a licensed veterinarian.
“(f) The provisions of this section shall apply only
in incorporated areas of any county having a population in
excess of seventy-five thousand (75,000) according to the
1990 federal census or any subsequent census.” (Bold &
Italics supplied.)
Illinois
Humane Care for Animals Act, 510 Ill. C.S. 70/1 et seq.
“In addition, to [actual out-of-pocket expense] damages that
may be proven, the owner is also entitled to punitive or
exemplary damages of not less than $500 but not more than
$25,000 for each act of abuse or neglect to which the animal
was subjected. In addition, the court must award reasonable
attorney’s fees and costs actually incurred by the owner in the
prosecution of any action under this Section. The remedies
provided by this Section are in addition to any other remedies
allowed by law. In an action under this Section, the court may
enter any injunctive orders reasonably necessary to protect
animals from any further acts of abuse, neglect, or harassment
by a defendant. ” (Bold & Italics supplied.) 510 Ill. C.S.
70/16.3: Civil actions.
Justifications Being Given to State
Legislatures for Allowing Emotional Pain &
Suffering or Loss of Companionship Damages
“JUSTIFICATION: Brutal violence against animals, so often
a precursor to violence against humans, goes on largely
undeterred--and entirely uncompensated--because criminal
and anti-cruelty measures often aren’t enforced, and our civil
tort law still treats animals the same as inanimate property: like
table and chairs.” (Italics supplied.)
“‘…the emotional harms wrought by the death of a companion
animal must be recognized if these goals of tort law [I.e.,
compensating the victim and punishing the wrongdoer] are to
be fulfilled.”
New York A.B. 6340 & S.B. 2791 Summary (2003)
Possible Responses to Bills Authorizing
Emotional Pain & Suffering or Loss of
Companionship Damages?


Inconsistency in Legislative action--when such
damages are being restricted, limited or considered for
possible elimination for human injury, Legislature
would be allowing such damages for injuries to
animals.
If Legislature is to allow such claims against
veterinarians, then veterinarians should be enjoy the
same protections of the state’s medical professional
malpractice tort reform laws. E.g., Neasbitt v. Warren,
22 S.W.3d 107 (Tex. App. Ft. Worth 2000)-veterinarians not covered by medical tort reform law.
Possible Responses (cont.)

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Same Protections?
Veterinarians to covered by state medical malpractice
reform laws.
Veterinarians to have same statute of limitations for
malpractice as physicians. I.e., generally shorter
and/or cannot be extended for as long as other
professionals
Plaintiff to have veterinary expert witness affidavit at
commencement of action or shortly thereafter opining
veterinarian deviated from the standard of practice,
how deviated, and the deviation resulted in injury or
death.
Veterinary malpractice screening panels.
Possible Responses (cont.)
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State should provide financial assistance and taxbreaks like for physicians and human hospitals?
Increase in insurance premiums for veterinary
malpractice in states allowing emotional distress
damages with veterinary care costs rising as those
increased insurance costs are passed on to clients.
Clearly specify what animals emotional distress or
loss of consortium claims can be made on.
Specify a maximum dollar limit for such claims.
Specify type of conduct required for such claims-gross negligence, wanton, willful, malicious.
Client’s entire history viz-a-via any animals should
be admissible in evidence.
Possible Responses (cont.’)

Claimants should be required to have expert
psychiatric / psychology affidavit and testimony
directly attributing all of their claimed emotional
distress to the loss of or injury to their animal.
If any of the claimant’s emotional condition is
attributable to some other cause, then no claim for
emotional distress or loss of companionship should
be allowed.
What About Authorizing Emotional Pain &
Suffering or Loss of Companionship
Damages Only for Gross or Wanton
Negligence or Willful Conduct?

Animal owners who before would have alleged just
ordinary negligence or malpractice, will now start
alleging their veterinarian was grossly negligent or
engaged in willful and wanton misconduct in order
to enhance the settlement value of their lawsuit.

There may be no insurance coverage for a jury
verdict of gross negligence or willful and wanton
misconduct.
Changing the Legal Status of Animals:
(1) Owners Becoming Guardians & (2)
Pet Trusts
Under common law, predating the settlement of
north America, domesticated animals have been
considered the property of people.
Various local communities around the country,
including in Colorado, have enacted ordinances
declaring that one does not own an animal but, rather,
is the guardian or custodian of the animal.
In 2001 Rhode Island became the first state to
incorporate the use of the word “guardian” into its
statutes dealing with animals.
Rhode Island R.I. Code § 4-13-41: Use of the terms owner or
guardian:
“Wherever the word ‘owner’ shall appear in this
chapter [Animals and Animal Husbandry–Dogs] it shall
also mean and may be interchanged with the word
‘guardian’ as defined in [R.I. Code] § 4-13-1.2.”
R.I. Code § 4-13-1.2(10) “‘Guardian’ shall mean a person(s) having the
same rights and responsibilities of an owner, keeper and
both terms shall be used interchangeably. A guardian
shall also mean a person who possesses, has title to or
an interest in, harbors or has control, custody or
possession of an animal and who is responsible for an
animal’s safety and well-being.”
Ownership to Guardianship?
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Guardianships are a fiduciary relationship that
imposes a duty of the highest fidelity and requires the
guardian always act in the best interest of the ward
(animal).
Some courts have already described the veterinarianclient-patient relationship as being fiduciary. E.g.,
Thorpe v. Board of Examiners in Veterinary
Medicine, 104 Cal. App.3d 111, 163 Cal. Rptr. 382, 8
A.L.R. 4th 216, 222 (1980)–a veterinarian is a
fiduciary as far as the care and protection of client’s
animal is concerned. See also Hume & Liechty
Veterinary Associates v. Hodes, 259 Ill. App.3d 367,
197 Ill. Dec. 977, 632 N.E.2d 46, 48 (1994).
Ownership to Guardianship? (cont.)
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To whom would the veterinarian owe the fiduciary
duty? Animal, guardian or both?
Who determines what is in the “best interest of the
animal”? The guardian, the veterinarian or both?
What if there is a conflict between the guardian and the
veterinarian about what is in the “best interest of the
animal”?
Ownership to Guardianship? (cont.)
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Tort claims by animals? While animal owners can
recover various damages from a veterinarian for
malpractice, if animals are no longer property can
animals through a “next friend & guardian” now assert
their own claims for their injuries or damages? E.g.,
Oberschlake v. Veterinary Associates Animal
Hospital, 2003 Ohio 917, 2003 WL 586528, 2003
Ohio App. LEXIS 853 (Ohio App. 2nd Dist. 2003); N.Y.
A.B. 6340 & S.B. 2791 and Mass. S.B. 932.
Could a parent animal assert a wrongful death claim
against a veterinarian for the death of an offspring
[like a human parent could the death of a child]?
Ownership to Guardianship? (cont.)
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Disciplinary complaints by animals? Like with tort
actions, could an animal by and through “a next friend
and guardian,” file a disciplinary complaint with the
Board of Veterinary Medicine?
Valid “veterinarian-client-patient relationship” Does
the definition of a valid “veterinarian-client-patient
relationship” need to be altered if the client, by law, is
no longer the owner of the animal? If so, how?
Ownership to Guardianship? (cont.)

Will the classification of animal guardian apply
only to companion animals or to all domesticated
animals? If animal guardianship only applies to
companion animals, which domesticated animals are
to be considered incapable of ownership as compared
to those animals which may still be owned?
How is a veterinarian to determine which animals a
client can own as compared to those animals the client
can only be a guardian of?
Ownership to Guardianship? (cont.)
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Some states have registries of guardians /
conservators--May a veterinarian deal with a
“guardian” who is not registered with the State
Registry? E.g., California Probate Code §§ 2850 2856. What, if any, obligations will a veterinarian have
to determine if [1] the animal guardian must be
registered with the State Registry and/or [2] to check
with the State Registry to determine the animal
guardian’s registry, before providing or continuing to
provide veterinary care to the animal?
Who is responsible for the bill for veterinary
service?
Ownership to Guardianship?--Consent
to Treatment or Non-Treatment?
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If animals are no longer property but rather, wards of a
guardian, by what standards will a veterinarian’s
obligations to advise about treatment or obtain
consent to treatment or non-treatment be governed?
“Best interest of the animal” a la “best interest of the
child?”
If “best interest of the animal” is the standard in
determining the veterinary treatment or care to be
provided, what objective criteria is to be used in
determining what is in the “best interest of the
animal?” How is it in the “best interest” to euthanize
a healthy animal?
)
Ownership to Guardianship?--Consent
to Treatment or Non-Treatment? (cont.)
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Does the informed consent doctrine need to be
modified if the client is no longer the owner but a
guardian?
If a veterinarian believes a guardian’s non-treatment or
minimal treatment of the animal will not be in the
animal’s best interest, will the veterinarian be
required to file an action with a court to determine if
the veterinarian should provide treatment or additional
treatment to the animal contrary to the guardian’s
instructions to the veterinarian?
Ownership to Guardianship?-Suspected Animal Abuse
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If animal owners become guardians, can a veterinarian
decline, indeed even be required, to refuse to return
an animal to a guardian whom he or she suspects
might be abusing or neglecting the animal?
Will a veterinarian be subject to disciplinary action if
he or she returns an animal to a guardian whom the
veterinarian suspects is abusing or neglecting the
animal?
Ownership to Guardianship?-Abandoned Animal Notices

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Is an abandoned animal notice to an animal guardian
that an animal will be deemed abandoned within a
certain time, still legally sufficient for a veterinarian to
obtain possession of an animal?
If a veterinarian does obtain possession of an animal
via an abandoned animal statute, what is the
veterinarian’s legal relationship with regard to that
animal? Owner? Guardian? Creditor? Lienholder with
possession of the animal as security for an unpaid bill?
Ownership to Guardianship?-Abandoned Animal Notices (cont.’)
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If a veterinarian does obtain possession of an animal
via an abandoned animal statute can he or she
thereafter put the animal down even if the animal is
healthy and/or it would not be in the “best interest of
the animal?”
Can the veterinarian allow the animal to be adopted by
another person?
If the animal is deemed abandoned, must the
veterinarian obtain a court decree that he or she is
now the animal’s guardian?
Ownership to Guardianship?
Veterinary Liens
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Can a veterinarian have a lien on an animal that the
person who presented the animal to the veterinarian
did not own?
Can a veterinarian continue to retain possession of an
animal and even dispose of it (put it down) if the
guardian does not pay the bill for veterinary service?
Ownership to Guardianship?
Veterinary Privilege / Confidentiality



Presently, it is the client who holds the veterinarianclient privilege. Who holds the veterinarian-client
privilege if the client is no longer the owner of the
animal?
Can a veterinarian release veterinary medical records
or information contrary to the directions of a guardian
because the veterinarian has determined it is in the
“best interest of the animal” to do so?
Can a veterinarian not release veterinary records or
information contrary to the guardian’s directions
because the veterinarian has determined it is not in the
“best interest of the animal” to do so?
Ownership to Guardianship?
Medicines / Controlled Substances /
Biologics


Under federal and state laws, can a veterinarian issue,
prescribe or dispense a prescribed medicine, controlled
substance or biologic to a person who is not the owner
of an animal?
Do federal and state drug laws need to be amended if
it become animal guardianship rather than ownership?
Ownership to Guardianship?
Government Inspection / Quarantine of
Animals

There are numerous federal and state laws governing
inspection and quarantining of animals and obligations
of veterinarians in carrying out those laws. If animals
are no longer property, what provisions of these laws
might need to be altered?
Ownership to Guardianship?
Third-Party Intervention


If animals are no longer property of an owner but
wards of a guardian, can some person intervene and
assert the guardian’s decisions on veterinary care and
treatment, is not in the “best interest of the animal?”
Can some person intervene and assert the guardian’s
care of the animal and/or the veterinarian’s
treatment is not in the “best interest of the animal?”
That by following guardian’s decision, the veterinarian
is not acting in the “best interest of the animal?”
Ownership to Guardianship?
Principles of Veterinary Medical Ethics


What provisions of the Principles of Veterinary
Medical Ethics might need to be altered if the client is
no longer the owner of the animal but now its
guardian?
Would the Principles of Veterinary Medical Ethics
have to contain provisions on what a veterinarian’s
ethical obligations viz-a-via [1] the animal and [2]
the guardian who does not own the animal who has
been presented for treatment? If so, what should those
ethical obligations be?
Ownership to Guardianship?
Principles of Veterinary Medical Ethics

Would the Principles of Veterinary Medical
Ethics have to address what a veterinarian’s
ethical obligations are if he / she believes the
guardian’s directions as to care or treatment
(or non-treatment) of an animal are not in the
best interest of the animal? If so, what should
those ethical obligations be?
Ownership to Guardianship?
Other Professionals

What additional obligations, if any, might there
be if a veterinarian refers an animal to a nonveterinary professional (e.g., chiropractors,
physical therapists, etc.) for treatment?
Ownership to Guardianship?
Treaties

American Veterinary Medical Law Association,
Ownership of Animals vs. Guardianship of Animals:
The Effect of a Change in the Law on Veterinarians
in California, Vol. 56, No. 3, California Veterinarian
(May - June 2002). Available at: <www.cvma.net>

Pet Owners in San Francisco Become “Pet
Guardians”: Advocates Say the Terms Promotes
Animal Welfare, But Critics Worry it Opens the Door
for Lawsuits, Vol. 222, no. 5 J.A.V.M.A. (March 1,
2003).
Ownership to Guardianship?-Treaties (cont.’)


Steven M. Wise, Rattling the Cage: Toward Legal
Rights for Animals (Cambridge, Mass.: Perseus
Books, 2000).
Steven M. Wise, Wrongful Death of a Companion
Animal, 4 Animal Law 33 (1998).
Animal Law Classes in Law Schools
“Today, Harvard and 25 other law schools in
the U.S. have introduced law courses on animal
rights, and an increasing number of cases
representing the rights of animals are entering the
court system.”
Comment, Man and Other Animals: Our Fellow
Creatures Have Feelings - So We Should Give Them
Rights Too, The Guardian, (August 16, 2003)
<www.guardian.co.uk>
Animal Law Classes (cont.)




Ingham, Laws of Animals: A Treatise
on Property in Animals, Wild and
Domestic, and the Rights and
Responsibilities Arising Therefrom
(November 2003)
Waisman, et al., Animal Law: Cases
and Materials (2002)
Wynn, It’s the Law: Pets, Animals and
the Law (2001)
Dolan, Introduction to Laboratory
Animal Law (2001)
Animal Law Classes (cont.)





Curnutt, Animals and the Law: A
Sourcebook (2001)
Radford et al., Animal Welfare Law in
Britain: Regulation and Responsibility
(2001)
Jasper, Animal Rights Law (1997)
Fano, Lethal Laws: Animal Testing,
Human Health & Environmental Policy
(1997)
Brooman et al., Laws Relating to
Animals (1997)
Animal Law Classes (cont.)


Spiegel, Dreaded Comparison: Human
and Animal Slavery (1997)
Patterson, Eternal Treblinka: Our
Treatment of Animals and the
Holocaust (2002)
Animal Rights in Europe
The Federal Republic of Germany in 2002
became the first European nation to recognize
animal rights in its constitution.
Lawmakers in the lower house of the German
Bundestag (parliament) voted 534 to 19 to add the
“and animals” to a constitutional clause obliging
German states to respect and protect the dignity of
Germans.
Pet Trusts: Approximately 20 states
recognize pet trusts. Likely to grow now
that the Uniform Trust Code has a pet trust
provision.
“(a) A trust may be created to provide for the care of an
animal alive during the settlor’s [person who creates trust]
lifetime. The trust terminates upon the death of the animal or, if
the trust was created to provide for the care of more than one
animal alive during the settlor’s lifetime, upon the death of the
last surviving animal.
“(b) A trust authorized by this section may be enforced by
a person appointed in the terms of the trust or, if no person is so
appointed, by a person appointed by the court. A person having
an interest in the welfare of the animal may request the court to
appoint a person to enforce the trust or to remove a person
appointed.
Pet Trusts
Uniform Trust Code (cont.)
“(c) Property of a trust authorized by this section
may be applied only to its intended use, except to the extent
the court determines that the value of the trust property
exceeds the amount required for the intended use. Except as
otherwise provided in the terms of the trust, property not
required for the intended use may be distributed to the settlor,
if then living, otherwise to the settlor’s successors in
interest.” (Italics supplied.)
Kan. Stat. Ann. § 58a-408--effective January 1, 2003.
PET TRUSTS - WHO IS THE
CLIENT ?









The individual who presents the animal?
The pet trust?
The trustee of the pet trust?
A probate estate or a conservatorship?
Who or what entity is responsible for the bill?
Affect upon insurance coverage?
Who may consent to or decline treatment?
Who may consent to release of veterinary medical
records & information?
To whom may records or information be released?
WHO IS THE CLIENT ? (cont.)





Veterinarians practicing in states with pet trust laws
should ask clients if the animal is the subject of a
trust?
If animal is covered by a trust, veterinarians should
get a copy of the trust?
Trust document may indicate what the trustee can
and cannot do about the animal? [E.g., limitation on
euthanasia?]
Trustee conflict of interest?
Consider having the trustee personally guarantee
the trust’s obligation to pay veterinarian?
GREGORY M. DENNIS
Kent T. Perry & Co., L.C.
7300 West 110th Street, Suite 260
Overland Park, Kansas 66210-2387
Tel: (913) 498-1700; Fax: (913) 498-8488
E-mail: Leongatha@aol.com
American Veterinary Medical
Law Association
511 North Country Ridge Court
Lake Zurich, Illinois, 60047-2824
Tel: (847) 719-1810; Fax: (847) 719-1810
E-mail: wernette@xnet.com
Web: www.avmla.org