What Happens to Rover When the Marriage is Over?

If you had to choose a new doctor or find a specialist for an important medical issue, I bet you’d do a lot of research. You’d search the Internet, you’d ask friends. You’d do your homework, because you’d be putting your life in the hands of someone you must trust. We have confidence in our doctors, but even so, if it’s something serious, most people get a second opinion. How much research did you do before choosing your dog’s doctor?

Most likely you took recommendations from other pet parents or the place you adopted your dog, did some research online, maybe more, probably not. Did you know every state has a board of veterinary medicine where you can check the credentials of a vet before trusting them with your dog’s care? I didn’t. You owe your dog as much due diligence in selecting her vet as you do in selecting your own physician. The veterinary board will also have information about complaints filed against a vet. Even though I didn’t have a clue when it came to any type of dog care, I was willing to learn and listen to the people who did know and was lucky to get the right vet for my dog. Taking time to research a vet beforehand could save your dog from a serious problem in the future or having to file a vet malpractice case.

I adopted Sadie at PetSmart from a local shelter. At the time, this particular PetSmart had a veterinary clinic located in the store. I agreed to take my dog to this vet since the adoption fee covered the cost of getting my puppy spayed and her initial vaccinations. The vet was wonderful. As a new pet parent with no experience, I appreciated all the information Dr. Paul gave me each time I took Sadie to see him. We made it through the series of shots and the spaying procedure, without any problems. The clinic was clean and the staff was friendly and competent. In my bliss as a new dog mom I thought all veterinarians must be as wonderful as this one. Unfortunately, there are as many incompetent and neglectful veterinarians as there are individuals in any other profession.

When you take your dog to a veterinarian for treatment you become a client and are bound to certain responsibilities, such as promising to pay the bill, following any instructions for your dog’s care, and providing truthful information to assist in the diagnosis and care of your dog.

The veterinarian is also bound to certain responsibilities. These are set forth in the policies of the governing agency that oversees veterinary practice in the state where your vet practices. Almost all states use the policies set by the American Veterinary Medical Association (AVMA) in some form. The AVMA provides a general guide of ethical responsibilities for member veterinarians, and they must abide by these standards for both their animal patients and human clients. AVMA membership is voluntary, but membership and licensing in your state agency is not. The AVMA’s general guidelines are divided into three categories: professional ethics, criminal law, and civil law—malpractice cases.

Professional ethics are the standards of conduct veterinarians are expected to abide by. As a lawyer, I have a Code of Professional Conduct that I must follow or face sanctions from the Office of Disciplinary Counsel. Likewise, doctors must abide by the rules of the American Medical Association or they can be disciplined. Veterinarians are mandated to follow the standards set by the board in their state in addition to the basic principles of ethical and fair practice of medicine for animals they learn in veterinary school.

Criminal law applies when a vet commits a criminal act, such as animal cruelty, or if he fails to report animal cruelty or abuse. Veterinarians are mandatory reporters for any suspected illegal treatment of the pets they see. Just like schoolteachers and doctors, who are required to report abuse of people, vets must report abuse and neglect of the animals that come through their clinics.

Civil law applies to vet malpractice cases, but covers other issues that might arise between you and your vet, such as disputes over fees or collection of a bill owed to a vet. Additionally, veterinarians have an oath they swear to abide by. The oath (seen below) was first adopted by the AVMA Board of Delegates in 1969 and subsequently amended by the AVMA Executive Board in 1999 and 2010. The oath provides a general minimum standard for veterinarians and they promise to follow it the same as doctors and lawyers must with their own oaths when admitted to practice.

Being admitted to the profession of veterinary medicine, I solemnly swear to use my scientific knowledge and skills for the benefit of society through the protection of animal health and welfare, the prevention and relief of animal suffering, the conservation of animal resources, the promotion of public health, and the advancement of medical knowledge.

I will practice my profession conscientiously, with dignity, and in keeping with the principles of veterinary medical ethics, I accept as a lifelong obligation the continued improvement of my professional knowledge and competence.

AVMA Oath for Veterinary Practice

This is the minimum you should expect from your dog’s medical provider and what you should use along with references and research to evaluate if a veterinarian is the best person to provide for your dog’s well-being. All pet parents should possess a good knowledge of the policies of the AVMA to better understand the parameters of the veterinarian/client/dog patient relationship. The more you know about your vet and the standards he is mandated to operate under, the better you will be able to determine if your dog is getting proper care. The AVMA’s national standards are implemented in various ways in each individual state’s veterinary standards. These general standards include the following:

1. Licensing requirements in every state are different, but most states generally follow the national requirements with little variation.

2. Most of the licensing requirements are formatted from ethical principles for veterinary practice.

3. The principles deem it unethical for a licensed veterinarian to assist non-veterinarians practicing veterinary medicine.

4. Vets are not allowed to identify themselves as members of the AVMA or one of its specialty organizations if they are not members. This is an ethical violation.

5. Veterinarians are required to have continuing education to keep and renew their license. The amount of hours required is mandated by individual states.

These are important for pet parents to know, not to help you bring a lawsuit against your vet, but to help you select a vet who follows these principles and to better understand your relationship with your vet and how a practice should be operated. Membership in the AVMA is voluntary, and there are certainly good veterinarians who are not members but still follow the guidelines and abide by the rules of their state. If a vet disregards the standards set by his state board of veterinary medicine, he might be subject to disciplinary proceedings, but that alone is not enough for the basis of a lawsuit.

We found out just how lucky we were to have Dr. Paul when Sadie began having symptoms that suggested she had a heart condition. He researched, consulted with other vets, and tested her with a heart monitor over a twenty-four-hour period. (Actually, it wasn’t quite twenty-four hours, because Sadie chewed the wires off before the time was up, but it was long enough to get a reading.) I was frantic, but his calm assurances and professional abilities gave me hope that all would be well. He referred us to the Virginia Maryland Regional Veterinary Hospital at the Virginia Tech Veterinary School. We were placed in the care of Dr. Jonathan Abbot, one of the few veterinary cardiologists in the country at that time. I did a lot of research about the potential heart condition Sadie was facing and about Dr. Abbot and was confident that he was more than qualified to take care of my precious Sadie.

There aren’t enough accolades to heap on Dr. Abbot or the many Virginia Tech vet students who have cared for Sadie over the last fourteen years. She suffered from an “electrical problem” (easier to understand than the medical terms) in her heart. Like pistons running out of sync in an engine, her heart misfired in a similar manner. Scary? You bet. But Sadie was as much the perfect patient as I was the nightmare dog mom. After the initial diagnosis, and the decision to put her on a human medication, I still had to live with Dr. Abbot’s frank, yet kindly delivered, full disclosure that they weren’t sure this would work, but it was the best treatment available. If it did work, all would be well. If it didn’t, Sadie would have a heart attack, and there was nothing I could do.

So, we returned home and were referred to a different local veterinarian who would be able to follow her condition along with Dr. Abbot and perform the routine ECGs (dog electrocardiograms) necessary to monitor Sadie’s condition. I knew this vet because I had often watched his segment on the local TV station’s noon news program. He seemed like a good guy. He kind of reminded me of Opie Taylor from Mayberry and someone I could trust my dog with. Medically, while maybe off to a rough start, I set out to be the best caregiver possible for Sadie, to follow all the advice, and to be with her and stay positive. Sadly, not everyone and their dog have the excellent care or good results Sadie and I were fortunate enough to experience.

We were lucky, but how can you make sure you’re getting an ethical, competent vet? You can’t do too much research or ask too many people or organizations before entrusting your dog to a vet. We don’t have crystal balls to see into the future, but before malpractice ever becomes an issue, simple prevention measures can lessen the possibility of becoming a victim. Knowing your rights and the veterinarian’s duties and taking these additional steps will go a long way to ensure you performed due diligence before trusting a veterinarian with the life of your dog. You must be the advocate for your dog at all times, even when in the care of a competent vet. Here are some responsibilities of pet parents as your pet’s advocate:

1. Make sure you have selected a qualified vet who is compassionate and has a genuine love for animals.

2. Don’t be so quick to accept an initial diagnosis. Seek out a second opinion, see a specialist, or take your dog to one of the many wonderful clinics at veterinary schools.

3. Do research online to make sure you understand your dog’s diagnosis and potential treatment.

4. Don’t drop your dog off like dry cleaning. Stay and monitor her treatment. Ask questions. Don’t agree to anything you’re uncomfortable with or consider risky. Common sense and gut feelings are priceless resources here.

5. Immediately seek an independent second opinion if you suspect malpractice. If your dog has died, get the body to a veterinary college immediately for a necropsy (dog autopsy). Call them to find out how they want you to preserve the body. This is the last thing you can do for your dog so don’t hesitate. Necropsies are not generally expensive.

6. You’re entitled to and should get all of your dog’s medical records, including all x-rays, surgical notes, and lab results.

7. If you have evidence and support that you and your dog are victims of malpractice, immediately find a lawyer with expertise in animal law or a very good medical practice attorney.

Despite your best efforts, negligence happens that results in malpractice actions. California attorney Gail McMahon loved her Maltese like a child. In addition to being the star of Ms. McMahon’s life, Tootsie was a pedigreed Maltese show dog. Tootsie was only ten inches tall and weighed three and a half pounds, but Ms. McMahon’s love for her was endless. Unfortunately, this beloved pooch had some serious health problems that led Ms. McMahon to seek the services of a vet with a stellar reputation as a surgeon, in particular for the surgery Tootsie needed. Ms. McMahon did a great deal of research before choosing this vet because Tootsie had a history of medical problems.

As a puppy Tootsie needed heart surgery. When she was about three years old she developed a condition known as laryngeal paralysis, a serious breathing disorder. Dogs who suffer from this condition are at risk for suffocation because the muscles that normally pull the airway in the trachea open don’t work correctly. When the pet breathes, the walls of the airway don’t pull open, which restricts breathing. The walls can be pulled into the airway opening, which can completely close it, and the dog will suffocate.

After consulting with the veterinarian, Ms. McMahon took several months to decide whether or not to subject Tootsie to the surgery. The vet gave her ample assurances of a successful procedure, and there was the chance her beloved dog could die without it. What is known in the legal field as “informed consent” (you agree to the treatment after you have been told the details) and “full disclosure” (the vet has informed you of every conceivable problem that might occur, no matter how remote) applies to veterinarians as well as medical doctors. Dr. Craig explained how the procedure would be performed and pointed out every conceivable problem and possible complications.

One was that Tootsie could develop aspiration pneumonia. This happens when food or liquid is aspirated from the stomach into the lungs. In people as in dogs that will receive anesthesia, it is essential that they have no food or water for a period of time prior to surgery, and Ms. McMahon made sure Tootsie did not eat or drink as instructed. Dr. Craig assured her that this was rare, and as a lawyer she was aware that even the most remote potential complication had to be revealed. She ultimately decided to move forward with the procedure. A date was confirmed for the surgery, the pretesting completed, and Tootsie was admitted to the clinic.

Following the surgery, Dr. Craig called Ms. McMahon to tell her everything went well and that even though Tootsie had experienced some minor surgical complications, there was nothing to worry about. Tootsie was placed in a cage in the back of the practice instead of in the special care unit where dogs who had surgery were routinely placed. No one ever explained the reason for this, and a large issue in the resulting lawsuit involved the lack of care Tootsie received because of where she had been placed. Dr. Craig told Ms. McMahon that Tootsie would be home in a few days. Tootsie never came home. Tootsie died shortly after a nurse discovered blood and fluids oozing from her nose and mouth.

How could this happen? How did it happen? What exactly happened? And the most heart-wrenching question of all, “Why did this happen?” The questions were endless, and there were very few answers. Ms. McMahon ordered a necropsy and started a quest to find her own answers. The necropsy results convinced her that Dr. Craig was responsible for the death of Tootsie. Dr. Craig’s behavior after Tootsie’s death did nothing to comfort Ms. McMahon or in any manner explain what happened to Tootsie. In fact, almost seven hundred dollars was charged on her credit card for Tootsie’s post-op care—the very lack of care that contributed to, if not caused, her death.

Ms. McMahon filed a lawsuit against Dr. Craig for veterinary malpractice, loss of companionship, emotional damages, and other claims. She asked for seven thousand dollars in medical bills and one hundred thousand dollars for loss of companionship and emotional damages. The case was lengthy and spread out over several years, but in the end a dollar amount was awarded to Ms. McMahon only for medical bills and the market value of her dog. As reiterated throughout this book, dogs are considered property in most of the jurisdictions in this country. The case in chapter 5, where the plaintiffs received more than two hundred thousand dollars for the intentional injury to their dog’s leg, was in the same state as this case, which shows there is no set standard for damages for animal cases. It sounds callous, but that’s how it’s done.

Battle lines were clear in the McMahon case, with large corporate support from the pet industry siding with Dr. Craig, and animal advocates siding with Ms. McMahon. The pet industry’s interest was to keep veterinary costs low by making any recovery for loss or harm to an animal only for the market value of the animal and the cost of service. Animal advocates took a clearly opposite point of view, recognizing that Tootsie could never be replaced.

For a pet parent like Ms. McMahon, the cost of her dog and the medical bills are the least value for their loss. For me and other pet parents our dogs are everything. To the court system the only value is usually the cost of the dog and any damages suffered for medical bills. So the real question is, how does a court place a value on something intangible?

The short answer is that most often they don’t. This court wouldn’t determine or award that “priceless” value, and neither will most others. Emotional damages are claimed when the action of the defendant is so “outrageous” or intentionally cruel that the plaintiff suffers psychological harm. They often can’t eat or sleep. Their world is changed because of the horrible event they witnessed. In this case, the court recognized that Ms. McMahon and other dog owners are attached to their pets, but this court interpreted California law not to allow this type of damage award. There were precedents (prior court decisions) where parents seeking emotional damages for harm to their children had been denied, so there was little chance a court would allow it for the owner of a dog.

Ms. McMahon’s reason for suing the vet was never for money. Like many lawsuits where the action is so egregious and hurtful and there is little chance for recovery, they’re filed to send a message and to make the public aware of the defendant’s actions. Small comfort, but it’s often better than nothing even though the time and money involved in bringing such a lawsuit usually takes a heavy emotional and financial toll on the plaintiff. Instead of suffering in silence, many pet parents find some comfort in making the negligence of the vet known, seeking justice for their companion animal.

What should you do if you believe a vet has harmed your dog, give up? Absolutely not. You should bring a malpractice case just as if it were for a person. In Ms. McMahon’s case it got the public’s attentions, went all the way to the California Supreme Court, and was supported by the ALDF.

In this case, the court was sympathetic to Ms. McMahon. This was the first time a California court of appeals had ever considered the question of how to evaluate the true value of a companion animal. The problem for the court that remains today is how to reconcile the value of a dog that is considered property in light of the fact that the dog means so much to the person and adds so much value to their life. Courts will hear an amicus brief, which is simply a supportive writing by an outside party that supports one of the parties in the lawsuit. In this case, the ALDF wrote an amicus brief in support of Ms. McMahon, but courts aren’t obligated to give them a great deal of time or even consider them as any type of evidence in making their decision. In this case, the ALDF was only given ten minutes to present their point of view. They wanted the court to consider that the value of an animal killed through a negligent death can’t be determined in a mere property valuation. Even though it wasn’t a human who was killed, Tootsie was part of Ms. McMahon’s family, and she was emotionally bonded to her. The loss of Tootsie would have a huge and detrimental impact on her life. The chief counsel for the ALDF reiterated what he had written in the brief:

“Although this lawsuit does not involve the death of a human, it does involve real loss—the loss of Ms. McMahon’s companion animal, Tootsie. Ms. McMahon has sued the respondent veterinary medical providers for their role in Tootsie’s death. The issues here focus on the changing evaluation of the damages available when companion animals, despite their status as personal property, are tortuously killed.”

Courts across the country are increasingly finding that market value is not the appropriate measure of damages in cases involving the loss of a companion animal, particularly in veterinary malpractice cases. These courts recognize that longtime animal companions, like Tootsie, are a special kind of property, in that they cannot be readily replaced in the marketplace. Indeed, Tootsie cannot be truly replaced at all. Therefore, reliance on a market value measure is misplaced, as such a number would simply not provide adequate compensation to Ms. McMahon.”14

Ms. McMahon never got to present her case to the Orange County Superior Court. The court dismissed the case without hearing arguments on the basis that dogs are personal property and therefore emotional damages and no recovery could be granted beyond their monetary value. In order to expedite the case so a higher court could review it, both parties agreed to a legal compromise called a demurer, which was a judgment in favor of Dr. Craig.

The case then went to the Santa Ana State Court of Appeals, which also ruled in Dr. Craig’s favor, writing that veterinarians only have a duty to the animal they are treating when they agree to treatment. They have no duty to the pet’s owner, and Dr. Craig had no duty to avoid emotional distress to Ms. McMahon, in particular since she didn’t witness the death of Tootsie; a bystander would have a better case. The justices felt that expanding the laws to include awards for emotional damages would be an economic disaster for veterinarians, pet insurance, and the pet industry in general. The opinion also said that such lawsuits would “burden the court system,” and the court should be used for the resolution of “serious tort claims.” (Tort is a lawsuit for damages.)

Of small consolation to Ms. McMahon, the final page of the nineteen-page opinion expressed a small amount of sympathy, writing that the court understood the “love and loyalty” a pet brings to its owner, however, California law “does not allow parents to recover for the loss of companionship of their children. [So] we are constrained not to allow a pet owner to recover for the loss of companionship of a pet.”15

If you find yourself certain your dog has been the victim of a vet’s negligence, by all means, file a lawsuit. Even if you can’t win emotional damages or sentimental value for your canine companion, file a lawsuit with the help of a skilled attorney.

All states have malpractice statutes. Not all states include vets in their malpractice statutes, and that can be to your advantage. For example, Arkansas specifically includes veterinarians in its definition of “medical care providers.” This means that all veterinarians are included in the malpractice statute. The Arkansas law places a two-year statute of limitations (the amount of time you have to file your lawsuit from the date the incident occurred). However, if you are suing under a negligence cause of action in a bailment lawsuit, meaning you left your dog in the care of the vet and they were negligent, you have three years to sue.16

You can bring a lawsuit under a number of legal theories. It won’t matter what cause of action (a lawyer’s way of stating “this is what I am suing you for”) you use if you get results that hold the veterinarian responsible for harm to your dog. Some of these are:

Although these might sound like complicated legal jargon, they’re very simple. Most of these causes of action are based on property law, which is good since animals are still considered property in most states. If you live in a jurisdiction where companion animals are still treated like personal property and you bring a lawsuit that applies to personal property, but it achieves the result you want, you will have a better chance of success. For example, bailment is an old term used when someone else agrees to be responsible for your property. If you leave your car in a parking garage, it’s a bailment. Placing your coat in a coat check station at a restaurant; clothes at a dry cleaner; jewelry for repair; and dogs at a boarding facility, groomer, or veterinarian are all examples of bailment.

Bailment cases are much easier to win than malpractice cases because the standard is simple. You entrusted someone to care for your dog and return her in the same condition as when you left her. The bailee (person or facility keeping the property) failed to do so. Not all states allow bailment lawsuits against veterinarians, but with creative thinking your situation will most likely fit into one of the other causes of action. Any of the causes of action listed above can be an effective legal remedy for harm to your dog from an inept vet.

If you have a statute in your state that allows and recognizes malpractice lawsuits against vets, you’ve jumped a huge hurdle, but it doesn’t mean your case will be easy. It also doesn’t mean that you will receive any compensation for the love and companionship of your canine companion. Keep in mind, the value of your dog is the special bond that you share, but in court, even with a malpractice statute, your dog is still property and, as discussed in chapter 4, getting emotional damages is difficult at best in our justice system.

In order to bring a malpractice action in almost any jurisdiction you have to first set forth the basis for your case in addition to the fact that your dog has been harmed. It’s important for you to keep all medical records, invoices, and other documentation of the treatment for your dog. You’ll have to establish some facts up front.

1. First, you must show that the veterinarian had a duty of care for your dog. This means that the vet accepted the responsibility for the treatment of your dog. You took your dog to the vet for treatment and he agreed to treat her. Keep in mind, just because you take your dog to a vet doesn’t mean he has to agree to treat her.

2. The actions of the vet or his failure to act did not conform to the professional standard of care. Failure to act is extremely relevant if your dog was in a critical emergency situation.

3. The vet’s failure to perform his duties according to the professional standard of care was the proximate (a lawyer word that just means it was the reason) cause of the harm to the dog.

4. The injury or harm resulted in damages to you, not just the dog. Of course you suffered emotional harm, but you will also be harmed financially and have other economic damages.

If you can establish these facts, you’re ready to move on to making your claim public. Here are the steps for filing a lawsuit:

1. Start by sending a formal complaint to your state veterinary licensing board and any other entity that your vet belongs to, such as a county organization. You can find this on your state’s website or through an Internet search. Make sure you comply with their procedure for filing a complaint. Keep emotions out of this complaint. It should be factual and as brief as possible, but still set forth all the pertinent details. Start a file on your computer and make paper copies of everything you send to or receive from the veterinary board. Remember, they have the power to discipline your veterinarian, including revoking or suspending his license.

2. You should have an experienced animal law attorney or a malpractice attorney. This attorney can also discuss whether there are any criminal statutes the veterinarian has violated and bring your case to the attention of the local prosecutor. Most lawyers realize there won’t be a large monetary award in veterinary malpractice cases, so they will most likely not be willing to take the case on a contingent fee basis, as doctor malpractice cases are handled. In a contingent fee case, you don’t pay the lawyer anything if you don’t recover damages. Otherwise lawyers are paid by the hour.

3. If you can’t afford an attorney, at least have a consultation and discuss your options. Most attorneys offer consultations at no charge. You can retain the attorney only for negotiating a settlement with the veterinarian. Agree up front how many hours you can afford. This is much less expensive than going to trial.

4. Get a second opinion if you don’t agree with what the attorney told you concerning your case or if he’s not someone you are comfortable with. As an attorney, I treat every client’s case as if it is the most important issue in the world, because I know that for my clients it is.

5. If you can’t afford a lawyer, don’t be afraid to take the case to small claims court yourself. Often called magistrate courts, in these courts, the amount you can sue for is usually limited. In West Virginia, it’s five thousand dollars, but the amount varies depending on where you live. Small claims court is used to having people represent themselves and, despite what you see on Judge Judy, usually forgiving of mistakes pro se (without a lawyer) plaintiffs make. You can ask for a jury trial depending on your state, but most often you will only be trying to convince the magistrate judge, not an entire jury.

Whether you handle your case yourself in small claims or magistrate court or hire a lawyer, you will need evidence to prove your case. That file you start when you file the complaint with the veterinary board is where every important piece of evidence must be placed. How many times have you placed something you were going to eat within reach of your dog and come back to find an empty plate? The dog looks guilty, and you know she ate that roast beef, but the empty plate isn’t evidence that your dog ate the roast beef or if there was ever roast beef on the plate. Photos of your dog eating the roast beef would be necessary to prove your case beyond a reasonable doubt.

The same sort of standard is relevant with evidence for a court case. A good rule is to keep everything. It’s easy for your lawyer to get rid of it later if it’s not needed, but it’s hard to go back and get evidence that’s lost or destroyed. You need to preserve factual evidence to show:

It’s irrelevant if you can collect emotional or sentimental damages. Your bond with your dog is what you’ve lost if she has died as a result of the treatment, so make sure this is part of your case presentation. You need to show that your dog and your life together were “whole” before the treatment. That if it weren’t for what the vet did to your dog, your life, and her life, would still be the same. A picture really is worth a thousand words for this type of evidence. Photos, a short video, anything that shows the close bond the two of you shared or that she had with the entire family is considered evidence and is important.

If your dog survives but had pain and suffering from the treatment, needed extra care, and has residual problems, you must provide before-and-after evidence.

As a trial attorney I’ve used a tool that most trial lawyers use in cases for personal injury and other civil cases. It’s called a “Day in the Life” video. It’s simply a video recording of how difficult a person’s day is after they are injured. With the ease and availability of video on our cell phones and digital cameras, it’s easy to create one of these. You can put together scenes of great times with your dog and what your life is like now. It doesn’t have to be long, but it needs to get the point across. If your dog is injured, but survived, you can make a video of any hardships she has had to deal with since she suffered harm. These videos are very convincing to juries.

Start a phone log and record every person you talk to and a summary of the conversation. If you live in a state where only one person has to know a conversation is being recorded, record them. You can use them in your court case if a witness contradicts what they said previously with what they testify to on the stand. These recordings can also be useful in negotiating a settlement with your vet.

Your dog’s medical records prior to the treatment are a crucial part of your case. Perhaps this was a routine procedure, such as a dental cleaning, and your dog was given too much anesthesia. If she had a healthy life prior to this treatment, her records will show it. If she had some particular medical condition and the vet was advised of it prior to treatment, the records will show that.

Evidence of what happened from the procedure will be in the medical records. Get the medical records from the negligent vet immediately. If your dog dies or is injured this might be the last thing on your mind. Ask for the records before you leave their office. You paid for the service and are entitled to the records. Refusing to give you the records is not permitted by the veterinary board, and if this happens you must include this in your complaint. If you ask for them before leaving the practice, they might tell you they aren’t complete. Insist on them anyway and tell them to send you the completed copy later. In the case for Tootsie, the vet actually didn’t put the truth in the records, then when the lawsuit was initiated she changed them. It’s important that you get the records immediately.

I always advise pet parents to take someone with them if their dog is going to have surgery, is in a medical emergency crisis, or any type of treatment requiring anesthesia. This is because in times of emergency and grief we are scared and don’t think clearly. If you have a friend with you, they can remain calm and help you remember to get the records and other things.

Keep in mind that even if the veterinary board sanctions your vet and the court awards you a significant amount of money, this will not ease your deep sense of loss if your dog has died due to the negligence. Chances are you will feel that void forever. If your dog was harmed, she may still have physical limitations, and money won’t correct the physical damage or erase any suffering she’s experienced. The goal of any lawsuit is to make the person bringing the lawsuit “whole” again, but this rarely happens. The best you can hope for is some satisfaction that you’ve done all you can to make it known that a veterinarian caused harm to your pet and hopefully prevent it from happening to others.

Your damages will be economic (money you’ve spent), emotional damage you have suffered, sentimental value of your dog, or punitive damages. Evidence for economic damages include the vet bill, cost of any prescriptions or medications, additional treatment your dog requires, any special food, or other expenses related directly to the vet’s negligence. If you have retained a lawyer to file a lawsuit or negotiate a settlement, ask for attorney’s fees. Courts often grant the person who wins the lawsuit the amount of money they had to spend for legal representation. If the worst happened and your dog died, any cremation expenses or other costs directly related to her death are also considered economic damages. If you had to miss work, lost wages are also included in economic damages. Subsequent corrective veterinary care, travel expenses to see a specialist, and any other expense you incurred as a direct result of the vet’s negligence are included in economic damages.

Emotional damages are difficult to determine. Within emotional damages is a set of particular economic damages for expenses you’ve accumulated to deal with grief and resulting problems from the loss of your dog. There are two kinds of emotional damages. Intentional infliction of emotional distress is the legal term when someone hurts your dog on purpose. This could be purposely hitting her with a car, shooting her, or any number of acts intentionally performed. This cause of action is rarely if ever used in a veterinary malpractice case. Negligent infliction of emotional distress is when a negligent action causes emotional stress to a person. Malpractice by nature is a negligent action, and when it happens to your companion animal it causes emotional harm.

Every piece of evidence of your dog’s life prior to this malpractice action is important to prove emotional damages. Was your dog a therapy dog? Did she participate in Reading Education Assistance Dogs? Get statements and records from any doctors or grief counselors you saw after your dog’s death. Did you depend on your dog for security? Explain what a terrible impact this has had on your life. Losing sleep, anxiety, a profound sense of loss, and other conditions brought on by the loss of your dog are emotional damages. If the case goes to trial, expert witnesses in the field of grief, and in particular the loss of a pet, can help prove your case.

Sentimental damages are different from emotional damages. What you felt for your dog and her value to you in particular are sentimental damages, or the sentimental value of your dog. The law regarding sentimental value is constantly changing, cases are often decided on an individual basis, and they are widely different from state to state. Seven states—Alaska, Florida, Hawaii, Idaho, Kentucky, Louisiana, and Texas—allow noneconomic (sentimental) value to be recovered in the loss of a companion animal.

It might seem impossible to place a value on your dog because she’ll always be priceless in your valuation. Here’s where a lawyer can be of great assistance. By examining verdicts of other cases within your state and other jurisdictions, a lawyer can get a good idea of what’s “reasonable” and won’t be considered excessive by the court.

If you decide to represent yourself in small claims court, you can easily research online and make this decision before filing your lawsuit. Even in states where they use the standard of “value to the owner” in awarding damages for the loss of personal property, they often do not include family pets in this standard even though pets are classified as personal property. It’s a murky area of the law at best, and it’s changing all the time. However, evidence speaks for itself and can be persuasive. A thorough and compelling collection of evidence can be crucial in the decision-making process of the jury or a judge. If the law is unclear and has been decided in different ways, evidence is the key for a ruling in your favor.

If you remember the Medlen case from chapter 4, the Texas courts went back and forth in their decisions of whether the Medlen family could recover sentimental value for their dog that was wrongly killed at a county shelter. The Texas Supreme Court ruled that dog owners could recover noneconomic damages for their dog. They cited an 1892 case that was way before its time when it stated that dogs “were of special value to the owner.”17

An Indiana case, Henning, et al. v. Nicklow, allowed sentimental value damages for the loss of a pet. In this case the dog owners sued police officers claiming deprivation of their Fourth Amendment right of unreasonable seizure of property when police officers shot and killed their dog Misty. The dog owners sued to recover damages for the value of Misty as a companion animal. The court held that the dog owners’ testimony as to the value of Misty “as a companion, pet, and watchdog” could be used in determining the “market value” of the dog at the time of loss.18

Hawaii is perhaps the most liberal state in awarding sentimental value damages for pets. In Campbell v. Animal Quarantine Station, 632 P.2d 1066, 63 Haw. 557 (Haw. 08/26/1981), the Campbell family sued the Animal Quarantine Station when their dog, Princess, died from heatstroke while being transported in the defendant’s van. At the trial court level, the family was awarded the value of the dog, and one thousand dollars for “serious emotional distress.” The defendant appealed the case, but the Hawaii Supreme Court ruled in favor of the Campbells, reasoning that it has long been the law in Hawaii that dogs were personal property and that plaintiffs in Hawaii could recover damages for emotional distress for the negligent loss or destruction of personal property.

Punitive damages are the only damages a court awards that aren’t intended to reimburse you for what you’ve suffered and lost. They are intended to punish the defendant. Punitive damages are only awarded in cases where the conduct of the defendant is outrageous and so beyond normal conduct that the judge or jury feels that awarding them is necessary to punish the defendant and send a message to others who might take similar actions. They’re not granted often in civil cases, but it happens. If your vet did something so egregious it’s completely beyond any acceptable standard, punitive damages should be asked for in your lawsuit. Punitive damages go a long way in sending a clear message to your vet and others that they will be held accountable for negligence.

Even if you’ve hired a lawyer and your case is ready to go to trial, there’s another alternative that might give you more satisfaction. Mediation, or alternate dispute resolution, is an effective way to settle a lawsuit without a trial. Mediation is mandatory in many states before a case actually goes to trial. During this process you, your attorney, the defendant’s attorney, and the defendant go before an impartial mediator appointed by the court. In some jurisdictions you are permitted to have private mediation. In these cases, your lawyer and the defendant’s lawyer agree on a mediator and the cost of the mediation is either split between the parties or paid by the losing party.

Mediation usually begins with the mediator gathering all parties in one room where the lawyers give an opening statement, each lawyer presenting his client’s side of the story. You may present evidence, just as in court, but usually there are no witnesses. Then one side stays with the mediator while the opposing side goes to another room. After the mediator talks with one party he goes to talk with the other party. This back-and-forth usually goes on several times. Each time both parties learn a little bit more about what the other side is thinking and what they want for the settlement.

During your talks with the mediator, you can tell him things and tell him not to tell the opposing side. They will abide by your wishes. It sounds confusing, but mediation is very successful in settling cases out of court. It’s informal, and you can be more relaxed and open about your feelings and what you really want from the case. If your veterinarian’s insurance company will be paying any proposed settlement, someone from the company must be available in person or by telephone. They do not participate in the mediation.

If a settlement is reached, an agreement is drawn up and signed. If the veterinarian agreed to pay you money, you will receive a check within a set amount of time. If you want an apology from the vet and haven’t heard one, you can ask for it, and this often goes a long way in healing.

Sometimes there is no resolution and nothing is lost except some time and the case continues to trial.

Courts are beginning to realize that our canine companions fulfill a specific and irreplaceable role in our lives. More and more the legal system is starting to recognize that a judgment for emotional or sentimental value is appropriate when the award is not excessive, but reasonable when considering the role of the pet in the plaintiff’s life.

As more jurisdictions move toward the view that companion animals do not neatly fall into the category of personal property, more decisions will be handed down awarding sentimental value for canine companions, emotional damages for pet parents, and a great understanding will prevail that the market value of a dog is not the same as for a painting or other inanimate object. Awards in veterinary malpractice cases will increase substantially from merely the costs of the veterinary bills and what you paid for your dog, to a more substantial amount intended to compensate you for your loss.

Pet parents aren’t always in court as plaintiffs. What happens if you get sued because of something your dog does? What if she bites someone and causes harm? The Sanders family in Missouri never dreamed they would be defendants in a lawsuit due to the action of their beloved yellow labrador, Phineas. However, not only were the Sanders sued, the case received national attention, and thousands of supporters like me followed every action of the case on social media. National media swarmed into the small Missouri town that had been torn apart over the alleged actions of one family dog. The family’s long public and emotionally draining journey started with two little girls playing in a suburban backyard and an alleged dog bite.

18. Henning, et al. v. Nicklow, Slip Copy, 2009 WL 3642739 (N.D. Ind. Oct. 30, 2009) (NO. 1:08-CV-180).