Vermont's high court to consider emotional distress issue

Veterinary leaders guard against tort change, fear surge in liability cases
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May 01, 2008

MONTPELIER, VT. — Organized veterinary medicine is going head-to-head with activists in an attempt to convince the Vermont Supreme Court that pet owners have no right to sue for loss of companionship and emotional distress in alleged malpractice cases.

The case, led by animal-rights attorney Steven Wise, asks justices to open the door to non-economic damages in cases involving animals. A decision favoring the plaintiffs would set a legal precedent in Vermont and could persuade courts nationwide to alter longstanding animal-law principles that, for the most part, deem pets as property and worth no more than their market value at the time of death.

The challenge is not new. Courts and state legislatures in recent years have been inundated with largely failed attempts to raise the economic status of animals and blur the legal distinction between humans and pets. Yet a legal twist in Goodby v. Vetfarm Inc., Valerie Yankauskas, DVM, Paula Yankauskas, Cythia Pratt, DVM, and Charles Powell, DVM puts veterinary leaders on heightened alert. To elevate the non-economic damages cause for consideration, Wise dropped his clients' underlying claims that the pharmaceutical compounder and veterinarians failed to recognize that a drug given to two cats was improperly formulated and led to toxic overdoses. The move has provoked amicus curiae briefs by the Animal Health Institute (AHI), Vermont Veterinary Medical Association and the American Veterinary Medical Association (AVMA).

"Instead of litigating this case against the vets and the compounding pharmacy, the lawsuit is going straight for non-economic damages," says AHI General Counsel Kent McClure, DVM, JD. "All this case is about is opening the door to pain and suffering damages that, in our opinion, will raise costs for everybody who cares for an animal."

Ripple effect?

That argument is shared by a majority in veterinary medicine who fear permitting emotional distress, loss of consortium and pain and suffering claims in cases involving pets will instigate larger awards against veterinarians, flood court dockets with lawsuits and lead to skyrocketing costs for medical care.

Yet Wise, a Center for the Expansion of Fundamental Rights president who has taught animal-rights law at Harvard Law School, says the push to raise animals' legal status merely reflects society's increasing value of pets — a trend that provides job security for DVMs.

"The small-animal veterinary profession exists because humans have a very intense relationship with their companion animals," Wise says. "Yet when veterinarians screw up, they say the relationship shouldn't count, and we should only be responsible for paying economic damages. There's a serious disconnect there."

But patterning torts after human medicine is not the answer, critics contend. Astronomical human health-care costs, driven in part by legal liability expenses, promise to break the veterinary profession. And higher veterinary fees would add to animals' plight, especially in the current economic recession, McClure says.

"Just look at the headlines we've seen recently. Shelters are filling up, and pets are being abandoned. When there's cost pressure, animals suffer," he contends.

Potential outcome

Despite that argument, animals deserve a higher legal distinction, says Wise, who expects the court will come to a decision some time in 2008.

While McClure and others consider a ruling in favor of the plaintiffs unlikely, Wise has more confidence in the case's merits. Still, he predicts "a serious clash" as both sides present their best arguments.

"By taking this case, the Vermont Supreme Court has signaled they might be sympathetic to my side," he says. "The question is: As a matter of common law, will the court permit non-economic damages? I think we have a reasonable chance of winning this case."