A Major Victory for Animal Guardians

Posted by Matthew Liebman, ALDF Staff Attorney on October 7, 2008

The Court of Appeals for the State of Washington ju­st released a ­published opinion in an important case brought by ALDF member and animal lawyer Adam Karp, and in which ALDF attorneys filed an amicus brief. The case, Sherman v. Kissinger, No. 60137-7-1 (Wash. Ct. App. Sept. 29, 2008), stemmed from the death of Ruby, a toy poodle, following an unauthorized procedure by her veterinarian.  Represented by Karp, Ruby’s guardian Arlene Sherman sued the vet and the hospital, bringing claims for professional negligence, breach of fiduciary duty, negligent misrepresentation, conversion, trespass to chattels, breach of bailment contract, and negligent infliction of emotional distress.

At issue in the appeal was whether Washington’s medical malpractice statute, chapter 7.70 RCW, applied to lawsuits involving allegations of malpractice by veterinarians.  Although one might assume that applying a human health statute to veterinarians would be a good thing for animals and their guardians, in fact, the opposite is true.  Chapter 7.70 establishes a number of impediments to malpractice suits, including mandatory mediation, a shorter statute of limitations, and the elimination of alternative causes of action, many of which are relied on by animal law practitioners to enhance claims on behalf of animal guardians.  The Court of Appeals agreed with Sherman’s position, holding that the medical malpractice statute did not apply to veterinary malpractice suits, and that Sherman was entitled to pursue the alternative causes of action that the trial court had thrown out.

The second issue, the one on which ALDF submitted an amicus brief, was how to put a value on Ruby to compensate Sherman for her loss.  ALDF argued that Ruby was a unique individual who was irreplaceable; the only way to even approach adequately compensating Sherman was to give her the special value that she placed on the dog, also known as “intrinsic value.”  The defendants position, which was supported by an amicus brief from pet industry organizations including the American Kennel Club, was that Sherman was only entitled to the market value of Ruby, an amount of $100-$200.  Under Washington law, an individual is entitled to the intrinsic value of her companion if she can show the animal has no market value.  The court held, importantly, that the question of whether an animal has any market value is one left to the jury to decide.  All the plaintiff must do is present evidence that the animal lacks a market value and a replacement value (perhaps because of her age, mixed breed status, or health), and the question goes to the jury on the animal’s value.  Because juries are often sympathetic to the real value people place on their animal companions, this is a major victory for guardians.

ALDF send its hearty congratulations to Adam Karp and Arlene Sherman for this significant victory, and to Claire Davis at the law firm of Wilson Sonsini Goodrich & Rosati, who assisted with ALDF’s amicus brief. 


23 thoughts on “A Major Victory for Animal Guardians

  1. Tina Hale says:

    Congrats to Mr. Karp and ALDF! Thank you for protecting the pet guardians’ and companions’ interests and well being. Please keep up the good work!

    I too have filed a lawsuit in the State of Alabama for my toy poodle’s misdiagnosis, mistreatment and death 3 days after release from the surgeon. I hope this victory will be accepted as caselaw in Alabama. Although my attorney’s practice area is med mal, I hope I will win my case.

    http://alabamavetboardwatch.110mb.com/New-Asp-index.htm

  2. Adam Riff says:

    I read it and the section that stood out was:

    “All the plaintiff must do is present evidence that the animal lacks a market value and a replacement value (perhaps because of her age, mixed breed status, or health), and the question goes to the jury on the animal’s value. Because juries are often sympathetic to the real value people place on their animal companions, this is a major victory for guardians.”

    This is the most promising weapon we have, this is the primary and most important element of this ruling and is MAJOR because this can be duplicated in almost any state and opens up the doors tremendously to non-economic damages which of course brings in the attorneys. We should get the word out as much as we can.

  3. Stefani says:

    Thank you, thank you, Adam Karp and ALDF. I am so grateful to you for continuing to fight to have the value of our beloved animals recognized.

    The very industries that fill their coffers profiting from the love we have for our companion animals are the ones that rush, flush with resources, to court to defeat us when we ask that their value be recognized. It is an understatement to call that unfair. It’s also hypocritical.

    We are willing to pay huge sums of money out of our pockets to improve, extend, and save the lives of our companion animals precisely because they have such intrinsic value to us. This is WHY vets can make so much money in the first place. The older the pet, the deeper the connection is likely to be.

    These same people that call our pets our “babies” when they are taking our money, that refer to us as “moms” and “dads” when they make vet appointments (“Oh, you are Fido’s ‘mom’, right?”) turn around and claim that our pets are worthless when they negligently injure or kill them.

    That will not stand, thanks to people like you.

    Stefani Olsen
    The Toonces Project
    http://www.TheTooncesProject.com

  4. Julie says:

    Thank you, Mr. Karp and ALDF, for this important step in the right direction towards getting recognition for the value that our companion animals should have in our legal system. When my beloved Siamese went undiagnosed and untreated for four major and potentially fatal conditions, and then was put under anesthesia and operated on while dying without my knowledge or consent, I could not believe that anything like this could happen in a veterinary setting. To me, unauthorized procedures are the ultimate betrayal, essentially trampling the rights of the pet guardian to be informed as to what is happening to their companions and having the right to decide what is done or not done to them. For a vet to arbitrarily take away those rights is an abomination. To make matters worse, our travesty of a veterinary board system in Austin let this vet go in spite of all the evidence. Vet boards are basically a lost cause; our only hope is a legal system that recognizes that a pet who is treated by a medical professional as a family member does not transform into a worthless piece of property once that professional “breaks” our family members. Many, many thanks for your role in helping to define the worth of our family members, especially after their deaths at the hands of the ones we trusted the most.

  5. Thank you ALDF & Mr. Karp for your work on behalf of companion animals!

    Obtaining counsel appears to be impossible in my home state of New Hampshire, where the bar is at the utmost lowest for veterinary care in its most abusive and fraudulent form.

    I can only hope that as more victories in other states are obtained, more cases will go forward, and change the status quo for accountability of malpractice and fraud.

    Great harm to companions and their owners have gone unchecked for decades. Sincere thanks.

  6. Carrie says:

    I am not sure why people have the misconception that veterinarians make so much money! I don’t know any veterinarian who owns multipe homes, yachts or takes expensive trips such as a lawyer or human doctor does. If you review the average salary of a veterinarian you will find that they make less then an experienced mechanic working at a dealership. In most cases, they give some services away for free. Show me a human doctor that does that!

  7. Concerned Human says:

    This case is sad for so many reasons. Foremost, no amount of money will bring the dog back. Nevertheless, you sue the person who was trying to help the dog. How many thousands of dollars and hours were wasted to bring this suit?

    We have people dying of starvation and disease throughout the world today and you have the audacity to sue a your dogs caretaker?

    I congratulate you for being incredibly misguided. Thank you for having the courage to waste both parties money and judicial time.

    Ask yourself this: What was accomplished by this suit? You have only succeeded in raising Veterinarians costs and distancing potential relationships between vets and owners because of fear of suit. Vets will now never take initiative in lifetaking situations because of fear of a lawsuit before consulting an owner.

    Make no mistake, this was not a victory for pets. This was just a loss for humanity. Next time you go to the vet and have to sign 10 forms before they will even look at your dying dog, remember this “victory” and thank the folks at the ALDF.

    Maybe its time you people find a worthwhile cause. One that focuses on serious problems that individuals (people, not pets) face in everyday life.

    Lets help humans that are dying instead of being distracted by the siren sound of 3rd class tort attorneys.

  8. Correcting the Concerned Human says:

    Hey Concerned Human:

    You are sooooo misinformed. Do you know what the average cost for malpractice insurance is for vets? It’s dirt cheap. There have been studies done, and no, your costs are NOT going to soar. Make no mistake about it, this IS a victory for the pet owning public, which obviously, you must not be a part of. You are a sorry ass excuse for a human being.

  9. Concerned Human says:

    I regret your ad hominem, but it does strengthen my concern that the folks at ADLF and their supporters are misguided. Just because this concerned human sees the benefits of supporting UNICEF or the American Red Cross as exponential more pressing and fruitful than the ADLF does not make me a “sorry ass excuse for a human.” Perhaps we should approach this as our President would and place irrational feelings aside and address the issues. You contend that because malpractice insurance is cheap for vets then there will be no ramifications from decisions like this. Yet, you fail to admit who will front those malpractice costs. It is you and I who will have to pay for that when we take our animals to the vet. History has shown time and again that as damage awards increase so do insurance costs. Additionally, you failed to address my concerns about distancing potential relationships between vets and owners because of fear of suit and the fact that vets will now be reluctant to take initiative in lifetaking situations because of fear of a lawsuit before consulting an owner. This time when you respond please avoid the urge to judge someone you do not know and address the real issues.

  10. Roger says:

    I wish to express my gratitude to ALDF for this important victory. We must all continue to fight in every state within the legal and political process to obtain rights for pets and their owners. Ask any pet owner if they realize that pets are classified as property and have no rights when someone intentionally or negligently harms or kills their pets. You will find that 99% of people do not realize this. It is this ignorance that is our greatest enemy. For if people knew, they would enthusiastically support our cause. So spread the word, for pet rights is the cause of our time.
    As for Concerned Human, you sir do have the right to your opinion. But I disagree with some of your points. You say no amount of money will bring the dog back. Does this mean that if someone were to kill my child that I should quietly accept it. It is not just a question of money but rather the love we have for our pets and the quest for justice against wrongs. I respect your support of worthy causes. At the same time, one person cannot tell another what issues should be important to them. You state that these lawsuits will drive a wedge between vets and owners, I disagree. When I took my father to Cleveland Clinic he received excellent care. You will always have good doctors and bad doctors. Should we continue to not have any accountability because it causes some vets to be more careful. As for increased costs, this will be negligible. The vast majority of pet owners will gladly pay a few dollars more per year if it means better care for their pets. You say we will have to sign 10 forms. Most of the problems arise from the fact that procedures are performed and pets harmed without getting our signature on even one form.
    Pet owners support the rights of people and pets. These are not exclusive issues. Yet, It’s obvious from your statement that “… you people find a worthwhile cause…focusing on people not pets…” that you really don’t value pets. And that’s the real problem. Because there are veterinarians who feel the same as you do.

  11. Tina says:

    Concerned Human:

    Three comments for you.

    1) There is NO VETERINARY ACCOUNTABILLITY–it’s about time for veterinarians to be accountable for harming companions through negligence or malpractice.

    2) If veterinarians consider their “patients” mere property, then they should consider themselves “mechanics,” not doctors of veterinary medicine. They can’t have the cake and eat it too!

    3) If veterinarians would like to equal themselves to medical doctors, they must be protagonists in changing the existing archaic law which sees animals as “property.”

  12. Natalie Kramer says:

    Concerned human! You are failing to sort out the issues. The goal of increased accountability for vets is a goal in its own right. If you are not aware of the fact that there is no meaningful protection or recourse for pet owners in cases of veterinary negligence, you probably have not fallen victim to it, which we all hope, for the sake of your pets, if any, that you don’t. However, for those of us who lived through the tragedy of having our pets killed by incompetent vets AND have had no entity to turn to for any meaningful recourse, your argument appears insensitive and misguided. Everything in the society and the economy functions as if pets are more than mere property. If you buy a $1000 piece of property (such as a TV) and it takes $2000 to fix it when it breaks, you replace your TV because fixing it makes no economic sense to any rational person. This economic rule DOES NOT apply to pets: numerous pet owners would spend far more to “fix” (heal, cure, etc.) their pets at a cost that FAR exceeds the market value of their pets (most pets have no market value, for your knowledge). This should suggest to you that viewing them as property is fundamentally flawed. It’s mindboggling that this even has to be explained! In any professional domain, accountability has to be meaningful. Veterinarians are not accountable to any authority. AVMA is their lobby, and so are the state boards. Pet owners, the consumers of veterinary services, are left out in the cold. You don’t see anything wrong with this picture?

  13. Dee Ohliger says:

    There are good veterinarians and there are bad veterinarians just as in any other job. The difference is that these people took an oath to “do no harm”. The California VMB is a joke when it comes to reprimanding vets. I know eleven owners who have had their pets harmed and yes even died (over the past 4 yrs.) after taking them to a local vet. Complaints have been filed with the VMB but only two have resulted in a fine. The situations are healthy dogs and cats arrive for a spay or neuter and are dead the next day, unauthorized procedures, botched surgeries, not reporting animal abuse and the list continues. We need stronger laws to protect the owners and their pets. Why can’t this information be published for the public similiar to reporting on hospitals? The ALDF does wonderful work and is fighting an uphill battle.

  14. Julie says:

    To Concerned Human: I will GLADLY sign 10 consent forms to have my pet PROPERLY treated. My vet didn’t possess the simple “human” decency to INFORM me that he was 1) putting my cat under anesthesia, and 2) performing dental surgery on her. Not even a phone call. NOTHING. Oh BTW, she was dying, v. dehydrated, anemic, hypokalemic, and hyperphosphatemic at the time, and this “doctor,” again, didn’t have even one SHRED of humanity to perform pre-surgical labwork or pre-anesthetic evaluation. He kept the treatments she NEEDED from her while administering UNAUTHORIZED and UNNECESSARY treatments. One more minor detail – she was almost 20 years old at the time. You bet I filed a complaint on his worthless ass, but our equally worthless vet board system let this arrogant creep go in spite of all the evidence.

    And when I went online and also testified to a Senate commission to tell my cat’s story, this sorry excuse for a “human” SUED ME and attempted to silence me through unconstitutional temporary and permanent injunctions. HE FAILED AT BOTH, I am thrilled to say, and I will never be silenced by this “animal-loving” bully or any other. My expert made mincemeat of this jerk and his so-called “care,” and this coward RAN the night before trial. And you’re so concerned about rising costs? Tell me – who do you think the vet passes on his massive legal costs to when he goes after a former client for THREE YEARS in an attempt to stop her from telling the truth about what he did to her cat? Great profession you belong to. The public is finally waking up to what some of you really are.

  15. Julie says:

    Thank you ALDF. I hope I have that kind of luck in court this Tuesday (June 2) against the vet who I hold responsible for the death of my companion animal, Gomez.

    http://www.VetsGoneBad.com

  16. Julie F. says:

    I’ve gotten mainly positive responses to my website, but the negative ones also come in the form of the person posting here, and the statement that “money won’t bring your animal back.” The implication is that a lawsuit won’t bring your companion animal back, so you just want money.

    No, it’s called “accountability,” and you don’t get quality services from anybody without it. That’s why people get deductions in pay if they don’t peform well or why a business loses money if they can’t keep customers.

    Pet owners who have lost a companion animal through veterinary negligence would love nothing more than to have their animal brought back to life. However, since this isn’t realisitc, pet owners who have suffered a loss have only one other legal recourse they can take besides filing with the Vet Medical Board (which many people feel is of little consequence to a vet).

    This is taking the action to court and/or putting up a website like mine and others so other people don’t have to get the harsh “wake up call” that we did. Veterinarians would never be able to get away with what they get away with if people knew how little regulations there are, but most people (fortunately for them) don’t.

    I had a very frustrating call yesterday with my state’s Veterinary Medical Board. I was directed to the same “vet laws” that mean little or nothing, then if you look at the Vet Board site, all regulations are “subject to the standards of the board” but you can’t find what those standards are. During my phone call I asked if there were any rules regarding “informed consent for surgery”, “having a client sign a RAMA (Release Against Medical Advice Form)if a vet alleges they are taking their companion animal home against medical advice”, or “if a vet had to inform a client of ALL of their options.” The response: It’s up to the individual veterinary clinic.

    If that isn’t the most absurd thing I’ve ever heard I don’t know what is. Okay, not the most absurd, but definitely in the top 10.

    People who post negatively usually have some type of relationship with a vet. Most people who have nothing to gain, or derive some benefit from keeping things as they are, wouldn’t be bothered to write such angry posts regarding other’s misery.

    It’s also interesting that a pet is only considered “property” when it suits the veterinarian’s case or position.

    http://www.VetsGoneBad.com

  17. Mary Lou Maraganis says:

    Does anyone know if this case has gone to trial yet and what, if anything, the jury awarded?
    Much thanks,
    Mary
    maryloumaria@yahoo.com

  18. Hi Mary Lou,
    Thanks for your continued interest in this case. The trial is set for November 9.

  19. Cedric says:

    I’m going to have to side with Concerned Human on this one. The reclassification from “owners” to “guardians” will indeed harm the general population of domestic pets more than help them. As the fear of malpractice suits settles in and vets require more and more insurance, the price of vetcare will skyrocket. A spay will go from ~150 dollars to upwards of 275-300, contributing to the already rampant problem of pet overpopulation. The increase will be even more severe in the more complicated and intricate surgeries, tempting owners towards euthanasia because of lack of an economical treatment, especially in todays economy. The truth of the matter is people have the right to choose the vet they want. Proponents of the “guardian” theory should maybe take a little more time to get to know the skills of their veterinarian and make informed decisions. They often say “if it were your child,…” well try the argument this way: if it were your child going into surgery, wouldnt you research a bit to find the best option? Word of mouth based on these tragic and unfair events will do more than enough damage to the veterinarians reputation, and capitalism will run its course. Hasty legal ramifications such as these may make the owner feel better about his/her particular case, but in the wide spectrum of vet med it is doing more harm than good.

  20. Richard says:

    No such thing as a pet guardian “idiots” for otherwise we would have hundreds of thousands if not millions of people in jail for animal abuse.

  21. Phoebe says:

    Cedric’s comment is the only sensible one here. This ridiculous “guardian” campaign is going to do much more harm than good to pet owners, veterinarians, and the pets themselves. I am proud to be a loving, and responsible dog OWNER. My dogs are my most prized possessions, and they get the very best of care from a wonderful, compassionate and skilled veterinarian who has cared for every one of my dogs for over 30 years. I get angry when I think of people who would want to refer to me as a mere “guardian” of these precious dogs. The “guardian” campaign is nothing more than the first step towards the ultimate goal of animal rights groups – to end pet ownership altogether. Their argument that the word “guardian” will make people take better care of their pets is crazy – irresponsible owners will be irresponsible “guardians”. I join those who are fighting against the term “guardian” becoming legal.

  22. DPDDT says:

    This was truly a victory. Thanks ALDF. The only ones “misguided” are the veterinarians that know they can get away with murder because of the lax laws that are supposed to protect non-human animals and the complicity of the State Boards that support veterinarians for the most part in spite of violations and review the complaint cases and the unfortunate pet owners/guardians that had no prior knowledge of this. Veterinarians are not God, but many play that role and attempt to do (or not do) things that will harm, injure or kill an animal fully knowing they can only be sued for so much.
    This quote from BluePearl Veterinary Partners’/NYC Veterinary Specialists’ oncologist Karen Oberthaler appeared in the Newsweek article “Treat People Like Dogs says it all.” “Pet owners routinely rack up $10,000 bills to save the life of an animal that they consider a beloved member of the family….Vets, also, are not saddled with the threat of career-ending malpractice lawsuits. While most pets are treated like children, legally animals are property—I can’t be sued for more than their face value.” Practices like this, charge astronomical prices when they know they can get away with it preying on pet owners/guardians. Ironically, they have some of the worst reviews on Google and Citysearch chock full of horror stories. This recent blog adds additional weight to what veterinarians like this are capable of: http://tikothecat.wordpress.com/2012/01/24/lawsuit-update-5-court-hearing-this-morning-adjourned-until-march-9th/ It’s high time something legally was done about veterinary negligence that holds veterinarians responsible for their actions.

  23. Francesca Rogier says:

    The court opinion document at this link is no longer available:
    http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=601377MAJ

    Can you please post it or send me a copy? I need it for an urgent case. Thank you very much!