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New damage laws will impact your wallet
Changes to calculating damages because of pet deaths will change your insurance premiums soon

DVM360 MAGAZINE


A lawyer that sees no gain

Three times last month, John Law—an attorney licensed to practice in West Dakota—received phone calls from various pet owners asking him to represent them:

> The first client's beloved 5-year-old dog died during a pyometra surgery at a local veterinary clinic.

> The second client had a barn cat whose healthy left leg was mistakenly amputated by a veterinarian after the right leg was crushed by a tractor.

> The third client lost a valuable exotic cat that he imported from Africa when his veterinarian's assistant left the clinic's back door open and the feline jumped out of his hands.

Law only agreed to handle the third case, telling the first two potential clients that they would either need to pay him by the hour to sue their veterinarians or find a lawyer willing to handle the cases on a contingency.Then, after having the exotic feline's owner sign a contingency fee agreement under which she would relinquish a third of any recovery as his fee, Law made two phone calls and got the insurance company to settle for $3,000. The cat owner then bought a new African cat for $2,000 and John Law made a quick and easy grand.

The first two callers can't even find a lawyer who will sue their veterinarians. They call all over the state and nobody wants to bother with their cases. The math works out like this:

> Five-year-old mixed-breed hunting dog: $100 value. A replacement is available at any local humane society. Total payday for plaintiff's lawyer under contingency fee arrangement of one-third of $100=$33.33.

> Barn cat: zero value. A replacement is available by waiting a couple months for the next litter out in the barn.

A lawyer that sees a cash cow

During the same week, three different clients with virtually identical claims called Paul Esquire, a local attorney practicing in East Dakota, the state right next door to John Law. As did his colleague to the west, Paul jumped on the easy dollars from the African cat owner. But the other two cases were enticing as well. This is because of the recent enactment of new damages guidelines for companion animals, which recently passed both houses of the East Dakota legislature and was happily signed by the governor. Esquire immediately signs contingency payment agreements with clients one and two. He doesn't even bother calling the companies insuring the two defendant veterinarians. Instead, he files lawsuits against them right away. The paperwork moves forward and the depositions are scheduled. He's thrilled with what he learns.

The hunting dog was his owner's constant companion. They went everywhere together. Since the pyometra surgery went bad, the client has no more interest in hunting or anything else for that matter. He was diagnosed with chronic depression and hasn't been able to work. His libido is gone, too. When the client's wife is deposed, she describes stupendous marital relations—which were ongoing before the veterinarian killed their dog—and her hubby's subsequent total lack of interest.

The barn cat case also goes to depositions and you can't believe the agony barn cat has experienced since the incorrect amputation was performed. The owner's children have been very upset watching the progress of their absolute favorite barn cat in its efforts to manage with the single deformed rear leg. It's hard to say who is suffering more, the cat or the kids.

Esuire may only have made $1,000 on the African cat but under the new damages law, the sky is the limit. He begins fashioning his negotiation strategy for dealing with the veterinarians' insurance carriers. He knows he and his clients will receive calls to settle before trial. It harks back the many auto accident cases he has worked on.

"OK, let's see, the hound dog is only worth $100 because it died under anesthesia and felt no pain. Nowhere to go there. But the client's next five years of antidepressant medication and psychiatric visits should run around $10,000. And the wife's loss of marital enjoyment is always a lucrative injury and might be worth twice that.

"Oh, yeah, note to self, I need to calculate the value of the owner's lost wages for at least three years plus amortization of lost Social Security and 401(k) contributions."

The wheels keep turning.

"As far as the cat, not much information available on pain suffered by animals in recovery from amputation of wrong leg. But all I need to do is figure out the correct argument analogizing pet injuries to people injuries and that should get the judge to allow me to introduce my file videos of human patients recovering from this same mistake.

"And who would've guessed how much those three kids adored that barn cat when there are nine others they don't seem all that interested in?"

The moral of the story: Keep your eye on your wallet and your premium notices when new damage calculation laws decide to ride into town.

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 email

For a complete list of articles by Dr. Allen, visit http://dvm360.com/allen/


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Source: DVM360 MAGAZINE,
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