Sunday, November 1, 2009
October 31, 1:19 PM Seattle Pet Laws ExaminerJean-Pierre Ruiz
Earlier this year, the California Court of Appeals found that a veterinarian’s negligence causing the death of the Plaintiff’s dog and later cover-up was conduct that was neither extreme nor outrageous enough to support a cause of emotional distress because she was neither a witness nor a direct victim. The Court also ruled that the Plaintiff could not recover for the peculiar value of the dog because “peculiar value” does not include “emotional attachment.” Finally, the Court declined to extend the loss of companionship tort to actions involving companion animals.
In McMahon v. Craig, No G040324, slip op at 2 (Cal. Ct. App. July 31, 2009), Plaintiff Gail McMahon, an owner and occasional breeder of Maltese show dogs, brought emotional distress and loss of companionship claims after one of her Maltese, Tootsie, died of likely aspiration pneumonia while under the care of veterinarian Diane Craig. Ms. McMahon had taken Tootsie to
Dr. Craig to correct the dog’s laryngeal paralysis, causing respiratory distress. In her complaint, Ms. McMahon alleged that Dr. Craig negligently fed her dog too soon after surgery.
During pre-surgery consultations, Ms. McMahon told Dr. Craig “about Tootsie’s history, described her strong bond to Tootsie, and stated she would do whatever she could, regardless of cost, to help [Tootsie].” Friends of Ms. McMahon even wrote letters to Dr. Craig explaining “the special bond” Ms. McMahon had with Tootsie. At trial, Ms. McMahon alleged that Dr. Craig “understood Tootsie’s peculiar value to McMahon, and that McMahon would be emotionally devastated if Tootsie died.” Dr. Craig advised Ms. McMahon that aspiration pneumonia was the greatest post-operative risk. Ms. McMahon testified that she understood food and water would be withheld from Tootsie for 24 hours following surgery to reduce the risk of aspiration pneumonia. Nevertheless, Dr. Craig ordered a technician to feed Tootsie a mixture of water and baby food two hours after the surgery “to test [Tootsie’s] ability to swallow.” Tootsie immediately aspirated the mixture into her lungs, thereby acquiring aspiration pneumonia. Dr. Craig advised Ms. McMahon but claimed that Tootsie had only been given water while promising that this was not a major setback and that Tootsie would receive the best care and be closely monitored. Dr. Craig thus failed to tell Ms. McMahon that Tootsie had been fed a mixture of baby food and water, and further failed to tell Ms. McMahon that “the pneumonia posed a serious, life threatening situation.” Adding insult to injury, and contrary to Dr. Craig’s promise, Tootsie was placed in a cage and left unmonitored in the back of the hospital. No antibiotics, oxygen, glucose, and other supportive care necessary to sustain life in a critical patient were provided by Dr. Craig. Around midnight that day, Tootsie died. She discovered by accident the next day by a technician who was checking on another day. Hence, by Dr. Craig’s negligence and lack of care, not to say professionalism, Tootsie died by herself in a cage, in a place she was not familiar with, alone with her fears and, no doubt, pain at being separated from those she loved and had promised to care for her.
Following Tootsie’s death, Dr. Craig denied in a letter that Tootsie had been given any food and alleged that Tootsie was never left alone and was under constant care. Dr. Craig further claimed that Tootsie’s death was due to her aspiring her own excrement. Ms. McMahon requested Tootsie’s medical records but Dr. Craig withheld the part which showed that Tootsie had been fed some baby food. Ms. McMahon obtained the complete records from a third-party and Dr. Craig altered her records to reflect the data that Ms. McMahon had obtained independently. A necropsy showed that Tootsie had likely died from aspiriting baby food. Adding icing on the cake, three days after Tootsie’s death, Dr. Craig directed that Ms. McMahon’s credit card be charged for all unpaid services rendered Tootsie for which Ms. McMahon had not even given her consent!
The Court correctly reasoned that Ms. McMahon “was neither a witness nor a direct victim of [the] defendants’ negligent acts” and thus could not obtain emotional distress damages for negligence. However, the Court also found no value in Ms. McMahon’s allegation that she had a special bond with Tootsie similar to the patient-doctor relationship that imposed a duty on Dr. Craig to avoid causing her emotional distress. The Court reasoned that, though Ms. McMahon had hired Dr. Craig, this latter’s “care”(?) had been directed at Tootsie, not Ms. McMahon. Finding Dr. Craig’s conduct insufficiently outrageous, it struck an intentional infliction of emotional distress claim. Finally, it limited proof of special value to those attributes “evidenced by the original cost, and the quality and condition at the time of the loss.” The Court, however, “endorsed” the pet industry’s argument that: “permitting plaintiffs to recover emotional distress damages for harm to a pet would likely increase litigation and have a significant impact on the courts limited resources.” The Court ignored, willingly or unwillingly, evidence that shows that the industry’s argument is without foundation. As Christopher Green noted in his law review article, The Future of Veterinary Malpractice Liability in the Care of Companion Animals, 10 Animal L. 163, 176-77 (2004): “Louisiana, Texas, and Florida each first awarded punitive or emotional damages for companion animal harm in the early 1960s, yet no deluge from ‘opening the floodgates of litigation’ ever materialized in any of those states during the forty years hence.”
In 2002, the Illinois legislature enacted perhaps the most comprehensive law on damages in companion animal negligence cases. Titled the Humane Care for Animals Act; the statute provides that: “[d]amages may include, but are not limited to, the monetary value of the animal, veterinary expenses incurred on behalf of the animal, any other expenses incurred by the owner in rectifying the effects of the cruelty, pain, and suffering of the animal, and emotional distress suffered by the owner.” Even so, there has been no flood of emotional distress claims in Illinois so far.
The Court, recognizing that “California law does not allow parents to recover for the loss of companionship of their children,” did not allow Ms. McMahon “to recover for loss of the companionship of a pet.” Lastly, it ordered Ms. McMahon to pay Dr. Craig’s appeal costs.
What is sadly not surprising, but always saddening, is that the veterinary and pet industries (e.g., California Veterinary Medical Association) filed a number of briefs in support of the Defendant and later praised the Court’s decision. The Animal Health Institute, members of which purportedly “invest hundreds of millions of dollars on the innovations, research and science necessary for advances in pharmaceuticals, biologics, and pesticides for animals,” asserted that a contrary result would actually hurt pets. Of course, unsaid is how exactly a decision which would support emotional distress in case of veterinary malpractice would hurt the pets. What is clear is how it would hurt vets who are unprofessional and/or negligent.
Until legislatures across the county accept the fact that there is a human-animal bond and that the death of a companion animal does indeed cause emotional distress, whether one witnesses the death or not, veterinary negligence will go uncompensated. When the courts further limit the measure of an animals’ worth to its “market value”, one could argue that veterinary malpractice will perhaps also go unabated. The McMahon decision gives unethical veterinarian reason to rejoice. It should also provide pause for animal caretakers to be very careful indeed when choosing a veterinarian and certainly, for those living in Irvine (CA), to avoid using the services of Dr. Diane Craig and/or her hospital, Veterinary Surgical Specialists, Inc., and Advanced Veterinary Specialty Group, LLC.
For more info: McMahon v. Craig: declarationsandexclusions.typepad.com/files/court-of-appeal-opinion---g040324.pdf.