Vet ethics: Emotional damages for animals: further considerations

In the previous Vet Ethics column, I raised the issue of whether veterinarians should be held legally liable to pay emotional damages in civil suits to bereaved clients for medical or surgical malpractice. This is a debate being had in Animal Law circles, particularly in the US. One reason for considering this issue is that it could foreshadow future changes in legal practice in at least some countries in which companion animals are highly valued. Another reason is that the debate reflects changes in moral or ethical views about animals.

Harvard legal scholar Christopher Green (amongst other scholars) puts the case that US law should be expanded to allow for more than the recovery of market or economic value when a loved pet is negligently or intentionally killed. Until relatively recent times, pets were not even classed as property. This meant that if a dog was stolen and killed, a person could recover the cost of the dog’s collar, but not the cost of the dog itself.

Of course, the law changed and pets are now classified as property. In addition, two US states allow recovery not just of economic but also of emotional damages arising from negligent or intentional killing of animal companions. Legal scholars like Christopher Green and Steven Wise want to see such tort laws enacted in the other US states too. Furthermore, they think this civil law should apply to veterinary malpractice as well as to the wrongful acts or omissions of other citizens.

Interestingly, liability for veterinary malpractice was present in ancient times. Green (2004) writes:

In ancient India, around 2,250 years ago, the edicts of King Asoka also addressed veterinary malpractice and compensation for negligence, mandating, “If a veterinarian was careless in providing treatment to a horse, or found to have used improper medicines, and the condition of the horse worsened, he could be fined double the cost of treatment.” Along with such early statutory provisions, common law courts in England awarded damages in suits for negligent veterinary care as early as 1370, with two such actions predating that country’s first documented human medical malpractice case (Green, C. 2004. The Future of Veterinary Malpractice Liability in the Care of Companion Animals. Animal Law, 10, 163.)

In the US, tens of billions of dollars are spent on veterinary care – more than is spent on sales in the US recording industry or on tickets to the major sporting codes and movie cinemas (Green 2004). This has occurred because of the rise of the human-animal bond. The veterinary profession has helped to promote stronger emotional relations between humans and companion animals.

Green argues that the current situation is economically inefficient, in that it fails to properly increase aggregate societal benefits and reduce aggregate societal costs. Part of the reason for this inefficiency, he claims, is that US veterinarians are exempt from animal cruelty legislation, and that US state veterinary boards or regulators have not adequately addressed malpractice in the American vet profession.

The situation can be ameliorated, Green argues, by allowing animal owners to attempt to receive compensation for non-economic, emotional harm in civil cases for veterinary negligence and malpractice. Deterring veterinary malpractice, he thinks, will help increase social benefit and spread burdens more fairly in society. Also, it might increase veterinary economic profit by further promoting the human-animal bond.

However, the American Veterinary Medical Association (AVMA 2017) strongly opposes this position. While acknowledging the emotional power of the human-animal bond, the AVMA argues that the “unintended consequences of any extension of potentially available damages beyond economic damages outweigh any potential benefits.” The Association advances a number of arguments which can be found on its website.

One of the AVMA’s arguments is that relevant civil laws would increase litigation, raising veterinary insurance costs and thus healthcare fees, since vets will pass on these costs to their clients. But this, the AVMA says, will deter some clients from seeking veterinary care. Therefore animal welfare could suffer. Legal-related costs, while assisting lawyers, may also be passed on to the public. The AVMA further argues that consumer costs for other animal-related services or products, such as boarding and food, will increase.

Green claims that empirical and factual evidence for the AVMA’s stance is lacking. For example, he alleges that it is not clear that litigation would escalate to damaging levels. Green also argues that even significant increases in malpractice insurance premiums for vets would have only very minimal effects on veterinary fees. Therefore, he suggests, companion animals will not be worse off; indeed, he thinks the overall effect of the law will probably be to make them better off.

Another argument is of interest from an ethical point of view. The AVMA states that:

allowing recovery of non-economic damages in litigation involving animals will place the value of human-animal relationships above that of most human-human relationships. Recovery would be allowed for injury to or loss of an animal, whereas recovery would be denied for injury to or loss of a grandparent, cousin or best friend. Indeed, awards are often difficult to obtain for injury to one’s spouse or child.

Presumably, the AVMA thinks that this applies in the likely circumstance that receiving non-economic damages for an animal companion is no easier than it is for a spouse or a child. And, of course, proponents like Green are not arguing that it should be easier, only that it should be possible and feasible. In Green’s view, it may legitimately be quite difficult to win civil cases in regard to pets – a specific case would need to be a strong one. Furthermore, he believes it will be necessary to have mechanisms to prevent frivolous lawsuits and to put monetary caps on non-economic damages for loved pets that are significantly less than the non-economic damages typically available for spouses or children.

The issue raised by the above AVMA quote seems to be whether some animal companions should be treated like other immediate family members in the relevant legal situations. The AVMA says they shouldn’t, whereas scholars like Green think they should.

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