Compensating Companion Animal Owners for Veterinary Malpractice Through an Alternative Dispute Resolution Mechanism

Problem statement: Many people own pets for companionship and become a ttached to their animals. Given this attachment, some owners contract for veterinary services to extend the live s of their pets and may spend more money for veterina ry c re than their animals are worth. If their pet dies due to veterinary malpractice, they only recei ve a nominal sum for damages. Approach: The research seeks a regulatory solution to compensate companion-pet owners in instances where veterinary malpractice causes injury to or the deat h of a pet. Under current law, remedies for veterinary malpractice do not recognize the pets’ a ctual value. Results: As values change, legislatures can address inequities. A proposed “Companion Anim al Compensation Program” sets forth a solution for paying modest amounts for veterinary malpractic e hat would avoid excessive litigation and large jury awards. Conclusion: To give greater value to companion animals, state can take action to establish an administrative procedure to compensate companion animal owners who lose animals due to veterinary malpractice.


INTRODUCTION
Arizona and California veterinarians had reason to cheer in 2009 when courts declined to allow pet owners to receive damages for emotional distress due to the death of their pets. The California court found "no basis in policy or reason to impose a duty on a veterinarian to avoid causing emotional distress to the owner of the animal being treated," and declined to recognize a tortuous cause of action to recover for emotional distress McMahon v. Craig. In the Arizona case, the court noted the unreasonableness of expanding tort law to allow pet owners to recover emotional distress or loss of companionship damages Kaufman v. Langhofer. The results are consistent with other cases and the valuation of animals as property. Yet, lawsuits suggest that some pet owners will continue to advance arguments for damages when they believe veterinarians did not adequately respond to their pets' needs (Hannah, 2000;Hankin, 2007).
Historically, veterinarians treated animals as part of agricultural production to save animals' lives so they could continue to be useful (Walker, 2009). Today, a vast majority of veterinarians rely on practices involving the treatment of companion animals that are not part of food production. Furthermore, veterinarians are engaged in providing services that rely on people making choices to expend monies above the property value of the animal being treated (Hessler, 2006). While veterinarians welcome animal owners who are willing to pay large sums of monies to treat their animals, they simultaneously maintain that the value of the animals is one founded on historic property law. This means that some pets are worth less than the money being invested in making their life more liveable (Green, 2004).
This article proposes a companion animal compensation program to respond to the public's discontent with existing legal remedies for veterinary malpractice involving companion animals.
The program would establish an administrative procedure under which companion animal owners could file complaints and grievances regarding alleged substandard veterinary care. By differentiating between companion animals and all other animals, the program would not affect veterinary care for farm animals, strays, unclaimed or unwanted animals and emergencies.
Alleged malpractice involving these non-companion animals would be governed by current state law, while malpractice claims involving companion animals would be changed. Veterinarians would be able to set higher fees for treating companion animals. Thereby, veterinary care for needy animals should not be affected.
Compensating animal losses: Companion animal ownership involves emotional attachment to pets and the accompanying desire to provide pets with veterinary care needed to enhance their pets' lives. Owners also may be willing to pay for costly veterinary procedures to extend the lives of pets (Hessler, 2006). Accompanying increases in veterinary interventions are changes in public expectations and attitudes about companion animals. Significantly, given some owners' attachment to their pets, they may experience a letdown when an intervention is not successful.
Their disappointment may lead them to believe a veterinarian failed to employ correct procedures and to allege veterinary malpractice.
Moreover, a growing animal rights movement, accompanied by animal law courses in at least 42 law schools (Eichinger, 2006), is providing the legal profession comprehensive information on malpractice recovery strategies. Attorneys and companion animal owners dissatisfied with veterinary services may be willing to assert damage claims even if they will not recover their litigation expenses (Eichinger, 2006). This means that a successful defense by a veterinarian against a malpractice claim may be a Pyrrhic victory: winning the lawsuit but losing time and billable hours. In addition, new laws are being suggested to enhance recovery options for veterinary malpractice liability (Byszewski, 2003).
Liability for veterinary malpractice is governed by state law. Most states have adopted a standard under which veterinary malpractice allows recovery for the fair market value of the animal, also known as its property value (Eichinger, 2006). Domestic animals including companion animals are viewed as property so that damages from malpractice are limited to the animal's market value as property (Hankin, 2007). Valuing companion animals as property does not acknowledge the animals' value to their owners.
However, a few states have recognized a value greater than the market value for companion animals (Hankin, 2007). While states have not agreed on the terminology for recognized values, it may be called the "actual value" of the companion animal. Under this standard, a veterinarian who negligently causes the demise of or injury to a companion animal is liable for the value the companion animal possesses to its owner. A pet's actual value includes investments in the animal, such as immunizations, neutering and training, as well as the costs of purchasing a replacement animal (Huss, 2002). Although various courts do not agree on what constitutes a companion animal's actual value, for this study, it includes investment and replacement costs but excludes companionship and sentimental values.
Another possibility for valuing companion animals is to take into account the companionship and sentimental value of the animal to the pet owner (Huss, 2004;Livingston, 2004). This value involves the intrinsic value of the animal to the owner and would include not only the cost of replacing a pet but also a value for the loss of companionship and emotional distress (Hankin, 2007). While this standard is more suited for situations involving the intentional infliction of emotional distress (Byszewski, 2003;Huss, 2002), some authors argue the intrinsic value might be employed for negligence (Byszewski, 2003;Livingston, 2004). A majority of courts considering veterinary malpractice do not recognize damage awards for loss of companionship or sentimental value (Schwartz andLaird, 2005-2006).
Dissatisfaction with state law governing veterinary malpractice has led to lawsuits requesting compensation for actual value and in other cases, for the animals' intrinsic value (Eichinger, 2006) Mercurio v. Weber. Another approach is to introduce legislative bills to update recovery options for wrongful injuries and deaths of companion animals (Byszewski, 2003;Schwartz andLaird, 2005-2006). However, calls for more drastic action also exist. Some groups are calling for compensation of nonpecuniary components of a loss of a companion animal (Huss, 2004;Livingston, 2004), guardianship status for companion animal owners (Green, 2004;Eichinger, 2006;Helms and Bain, 2009), a new legal category of "companion animal property" (Hankin, 2007) and rights for animals to assert claims (Favre, 2010). These ideas would markedly increase the liability of veterinarians for unsatisfactory veterinary services.
To respond to these challenges, it might be appropriate to devise a strategy other than defending veterinarians against damages on a case-by-case basis. While veterinarians and their insurers have been quite successful in defending actions, the public groundswell is going to require marked increases in funding to thwart both judicial and legislative actions. The recent legislative successes in enacting new limits on space and movement limitations for farm animals in seven states, including California, suggest that public interest groups can be successful in altering longstanding practices (Centner, 2010). Because some legislative proposals could significantly alter the practice of veterinary medicine, consideration of modest adjustments for recoveries involving substandard veterinary services may be appropriate.
Although there is no consensus that animals need to be protected from veterinary wrongdoing (Eichinger, 2006), this begs the question of how to address public dissatisfaction with limitations on recoveries for veterinary malpractice. Several options are available, with three being the most prominent. First, no action might be taken and veterinarians can continue to be on the defensive when others propose new legislative agenda items. Second, a legislative proposal with a compromise solution that addresses malpractice damages without allowing nonpecuniary damages for emotional distress might be developed.
This could include allowing intrinsic value damages for veterinary malpractice with a reasonable cap on damages. Third, an alternative dispute resolution program might be adopted to avoid excessive litigation and large jury awards (Hessler, 2006). By employing an alternative dispute mechanism, a majority of the problems accompanying human medical malpractice could be avoided.

Relationships with companion animals:
Basic psychology in the human-animal relationship tells us that the primary reason for owning non-farm animals is for companionship (Brown, 2006;Whitmarsh, 2005). Pets are highly valued (Hunt et al., 2008), especially when human support is limited or unavailable (Siegel, 1993). Companion animal owners treat their pets much like they would a child or family member (Siegel, 1993) and may adopt parental behavior for their animals (Woodward and Bauer, 2007). The attachment of companion animal owners to their pets is important in augmenting their psychological, physical and social health (Hara, 2007).
A natural consequence of companion animal attachment is the grief that results from pet loss (Livingston, 2004). Some studies have found that up to 93% of respondent pet owners stated they experienced some disruption in their daily routine such as disturbed sleeping patterns and loss of appetite with the death of their pets (Morley and Fook, 2005). Other studies have found that the levels of grief following pet loss were comparable to levels of grief following human loss (Gerwolls and Labatt, 1994). The literature shows that pet owners follow a grief process similar to that of the grief process over human loss (Turner, 2003). Symptoms of depression are also prevalent in individuals who had recently lost a companion animal due to a wrongful act (Livingston, 2004).
Moreover, given societal reactions to the loss of a pet, such as the owner can replace it with another animal, the grief of a pet owner may not be recognized by others. This grief is called disenfranchised grief; a grief that persons experience when they incur a loss that is not or cannot be openly acknowledged, publicly mourned, or socially supported (Decruyenaere et al., 2005;Doka, 1989). When disenfranchised grief occurs, a supportive social network is absent, which creates isolation in the griever (Jones andBeck, 2006-2007). With the death of a companion animal, emotions become more intensified and complicated and the owner experiences disenfranchised grief.
The human-animal relationship may be stronger for humans with assistance dogs.
Assistance dogs contribute to the psychological well-being of persons using them (Wells, 2007). These animals open doors for social interaction in otherwise isolated situations. This increased social interaction helps improve social confidence, self-esteem, independence and social identity among physically disabled companion animal owners (Sanders, 2000).
A greater understanding of the full emotional and mental capabilities of companion animals is vindicating feelings that owners experience with respect to their companion animals. Connected to this research, society seeks to ascribe greater respect to animals and their humane treatment. When a veterinarian or other person accidently or wrongfully causes the death of a companion animal, the emotional suffering of the owner is real. The special bond that owners have with their pets is documented by studies showing owners risking injury to save their pets in disaster situations (Heath et al., 2001). During the 2005 Hurricane Katrina emergency, animal owners refused to evacuate without their companion pets (Hunt et al., 2008). The governmental directive not to evacuate pets was changed in, 2006 when Congress changed federal law with the inclusion of a provision to provide for the rescue, care and shelter of individuals with household pets U.S. Code Annotated. This legislation ensures that companion animals and their owners receive more protection in future federal disaster relief efforts.
Given the legal treatment of companion animals and their value to their owners, a more equitable compromise between the needs and wants of veterinarians and those of their customers is warranted. Some believe that the current legal rules do not adequately resolve issues concerning veterinary malpractice. Companion animal owners do not feel properly compensated when their legal recourse for the loss of an animal is receiving damages for the animal's property value.
Veterinarians are concerned that increased numbers of lawsuits, accompanied by litigation costs, damage awards and non-billable time, will adversely affect their businesses. However, both veterinarians and companion animal owners want to keep the costs of veterinary care down to facilitate the treatment of needy animals.
A companion animal compensation program: An alternative dispute resolution program modeled after state workers' compensation legislation is advanced as an idea to circumvent costly veterinary malpractice litigation.
This would involve a state insurance program funded by veterinarians and companion animal owners to handle medical malpractice claims involving all companion animals. Assessments and fees would provide funding to handle payouts.
Owners of companion animals that received substandard veterinary care would receive compensation, but it would be limited by the legislative directive. Under the program, a state board of companion animal compensation would be created to delineate particulars for the program and oversee claims. The board would work with the state's veterinary college and veterinary association to administer the program, with professional arbitrators serving as hearing officers.
An overview of state workers' compensation programs highlights important elements that can be incorporated into a solution for veterinary medical malpractice issues. Each state's legislature would have flexibility in developing a program consistent with existing law, legal precedents and current social beliefs. A state legislature would pass enabling legislation delineating a compensation program for veterinary malpractice that only applies to companion animals. Qualifications for coverage under a written contract, redress against veterinarians and limitations on damages would form the key elements of the companion animal compensation program.
Major advantages of this program are that it would draw upon a program that already exists for accidents occurring in the workplace to enable dissatisfied pet owners to vent their frustrations, compensate qualifying claimants (companion animal owners), avoid litigation in courts and establish liability caps that preclude outrageous and punitive damages. Under a companion animal compensation program, claimants would report problems and apply to a state fund for compensation for their pet's injuries.
Through a professionally-administered process, claimants could qualify for compensation for injured or deceased companion animals.
Like workers' compensation programs, the companion animal compensation program would institute a compromise under which companion animal claimants would receive compensation in exchange for the right to resort to malpractice actions against veterinarians. This would allow more people to be compensated for malpractice because their remedy would be set at a modest amount. Companion animal owners would benefit from this process because they would be able to collect malpractice claims more quickly without having to go through the turmoil of litigation. Veterinarians would benefit due to the prohibition of veterinary malpractice lawsuits and corresponding reductions in attorneys' fees and litigation costs. A uniform processing system would ensure that administrative costs for veterinary medical malpractice claims are kept to a minimum.

Written contractual agreement:
The state's enabling legislation would provide that prior to treatment of animals by a veterinarian, a companion animal owner and veterinarian would sign a written contractual agreement. The agreement would say that the animal being treated is a companion animal, that all claims for unsatisfactory veterinary services are covered by the state companion animal compensation program and that all other tort actions (including veterinary malpractice) are precluded. Each companion animal owner would pay a fee for qualification under the program, with the funds being used for the administration of the program.
The implementing legislation would require all companion animal owners employing the services of a veterinarian to seek coverage under the program. Any animal owner who declines to sign a written companion-animal agreement before treatment of an animal would be deemed to have an animal that is not a companion animal. Thus, unclaimed animals at animal shelters, owners of pets that are not companion animals and all owners of farm animals and livestock would not be affected by the program. Existing state law would govern veterinary malpractice for non-companion animals. Because the companion animal compensation program may alter state law on the valuation of companion animals, the fee schedules for their treatment could be set at a higher level than those for non-companion animals.
The written contract would also acknowledge a statute of limitations, a period during which a claim for veterinary malpractice must be filed with the state board. Statutes of limitations provide closure to claims and assure timely resolutions. This would be a narrow time period, possibly six months. The small time frame is justified by the fact that necropsies, memories of the treatment and other evidence may be lost over time. For veterinary malpractice, scant justification exists for delaying responses to malpractice allegations.
Finally, the written contract could provide a space for a veterinarian and companion animal owner to acknowledge the treatment, the gravity of the treatment and the fact that the treatment might not be successful or could lead to the death of the animal. This disclaimer would help owners better appreciate the risks of the proposed intervention and the possibility that treatment could lead to the death of their pet.

Redress against veterinarians:
The companion animal compensation program would provide two avenues of redress for dissatisfied companion animal owners: (1) complaints and (2) grievances. Complaints and grievances filed with the state board would provide data for addressing issues of inferior veterinary services. The data could be used in establishing assessments paid by veterinarians to support the program so that veterinarians with larger numbers of complaints and grievances could be assessed higher fees.
The complaint mechanism would allow any companion animal owner with an accusation of insufficient veterinary treatment to file the complaint with the state board. This would be similar to what currently exists under the regulations in place in most states, although more pet owners might learn about the complaint mechanism as it would be noted in their contract for veterinary care. The mechanism allows persons to express their dissatisfaction without resorting to litigation or any other action. By providing a mechanism for complaints, unhappy animal owners have an outlet for venting frustrations. The complaint mechanism would also provide an informational role in assuring the public that there is oversight over the quality of services provided by veterinarians. Owners filing complaints would not receive any compensation under the program, although compensation could be awarded to owners who also file grievance petitions.
Second, for veterinary malpractice, a companion animal owner could file a grievance petition with the state board delineating the problem and allowing for the evaluation of damages.
Owners filing grievance petitions would pay a fee to help fund the program. The fee would also help reduce frivolous claims, verify claimants' identities and provide records to reduce fraudulent claims. The documented grievance would start an administrative proceeding to determine the merit of the allegations and the compensation due for the alleged malpractice.
The companion animal compensation program would designate mandatory binding arbitration as the sole remedy for grievances. A neutral professional arbitrator would hear and decide cases. Arbitration would mitigate the emotional damages accompanying veterinary malpractice by providing a recovery mechanism with minimal argument about the loss of beloved companion animals.
The state enabling legislation would say that arbitration creates binding agreements for the parties and thereby end disputes at the administrative level. Dissatisfied veterinarians or claimants would not be allowed to appeal to the courts, except procedural errors and constitutional issues. This would facilitate a quicker resolution of claims than through the courts and would markedly reduce litigation costs. The binding nature of arbitration, speed of resolution and cost effectiveness make the program an advantageous option for streamlining veterinary malpractice claims.

Limitations on damages:
Under the companion animal compensation program, two types of damage awards would be possible for proven malpractice: (1) actual and (2) liquidated. Actual value damages, as defined under the program, would compensate companion animal owners for expenses above their pet's property value. Liquidated damages would be amounts set forth in the contract as the remedy for the demise of a companion animal and would preclude all other malpractice claims.
The state board of companion animal compensation, after consultation with the state board of veterinary medicine and other appropriate groups, would establish the qualifications for actual value damages. An owner would receive damages calculated on the companion animal's actual value based on items including veterinary, animal training and replacement costs. Daily expenses for the care of the animal would not be considered in the damages. The state enabling legislation might allow the state companion animal board to set a cap for actual damages.
Owners suffering grief from losing their companion animal due to veterinary malpractice could also be awarded liquidated damages. Liquidated damages would be designated in the written contract as the sole remedy for loss of companionship and sentimental value. These limited damages would be established at reasonable amounts based on companion animal characteristics. Some animals provide greater companionship and as a result, greater emotional attachment than other animals. The state board would work with animal-relationship researchers to discern the attachment between species of companion animals and their owners. The board would set liquidated damages on a scale to be employed by hearing officers to establish damage awards for the loss of companion animals.
Damage caps would allow for modest compensation while keeping costs to a minimum due to the absence of punitive and other damages.
The differing nature of workers' compensation and veterinary care requires certain distinctions. Unlike workers' compensation, the companion animal compensation program would be dependent on evidence showing fault. The animal owner would claim unsatisfactory veterinary care and file a claim for damages. In addition, a companion animal owner would need to establish causation to justify liquidated damages. Whereas a workers' compensation program requires injured workers to submit to a physical examination to show that their injuries require compensation while they rehabilitate, damages for injuries to companion animals would be dependent on a psychological evaluation of the owner. The evaluation would establish proof of emotional injury justifying the payment of liquidated damages.
A schedule of damages would allow different claimants to qualify for different amounts.
Claimants with the strongest attachment to their injured or deceased companion animal would collect greater liquidated damages than those with a more modest attachment.
While payments of liquidated damages under the program might appear costly, over time the program should result in reasonable costs due to the fees assessed to companion animal owners. Moreover, because many Americans like to blame others for their problems (Centner, 2008), by forestalling dissatisfied companion animal owners from resorting to litigation, the program may be less costly than might occur under alternative options being touted to change the property status of animals (Huss, 2004;Livingston, 2004). The program would facilitate complaints and grievance petitions to allow companion animal owners to vent their anger, but mandatory arbitration precludes protracted litigation and arbitrary jury awards. Due to the program, veterinarians and their insurers may have lower veterinary legal costs, as they no longer have to defend claims by companion animal owners.
Funds for the program would come from four sources. First, every time a companion animal was treated, the owner would pay a fee to be transferred to the program. Second, every claimant filing a grievance would pay a fee. Third, every veterinarian-defendant to a grievance proceeding would pay a fee, with a larger amount being paid for cases involving liquidated damages.
Fourth, every veterinarian treating companion animals would pay a yearly registration fee.
Further details on handling malpractice claims: A hypothetical example may be used to show some details of the proposed companion animal compensation program. Mary, a single 40-year-old nurse from Atlanta, takes her cat of six years, Fluffy, to the veterinarian for a routine checkup. The veterinarian tells Mary that Fluffy has a lump in his belly and Mary agrees to have the veterinarian run a few tests. The veterinarian concludes that Fluffy has a benign tumor. Mary elects for the veterinarian to operate and have the tumor removed.
After the operation, the veterinarian tells Mary that instead of removing the tumor he accidently performed a different treatment that led to Fluffy's death. Mary is distraught and decides to file a grievance.
The process Mary takes to file a grievance will depend on the type of framework created in the state's enabling legislation. In this example, the state elected to allow for an Internet claims-filing framework and the details were set forth in the written contract signed by Mary. Mary goes online to the state web page designated for complaints and grievances against veterinarians and fills out study work about her grievance claim. In her grievance petition, she has the choice of filing for the actual value of her cat, or both the actual value and liquidated damages due to the loss of companionship. Most claims would be expected to simply request damages for the actual value of the pet. As a claimant, Mary is required to pay a fee. Since Mary is applying for liquidated damages, a larger fee is assessed than would accompany a petition solely for an actual value award. Mary also fills out a set of questionnaires.
The first concerns the alleged malpractice. The second questionnaire is only for grievance petitions requesting liquidated damages. The questionnaire addresses Mary's life situation and emotional attachment to the animal.
Upon the filing of Mary's online claim, the state board will gather evidence concerning the malpractice claim. Staff of the board will call the veterinary office and request copies of documentation relating to the claim. Upon hearing about the malpractice claim, the veterinarian can log into the board's website and answer a set of questions concerning the malpractice claim. Both parties are allowed to request and pay for depositions (written testimony out of court) from outside sources that relate to the alleged malpractice. It turns out that Mary was accompanied by a friend when the veterinarian was telling her about the planned procedure to remove the tumor. Mary's friend is allowed to give a deposition to strengthen Mary's testimony. The veterinarian may have a veterinary assistant respond with a deposition about the incident.
Because Mary applied for liquidated damages, she will need to establish her emotional attachment to Fluffy. Mary schedules a psychological evaluation to be held at a program office. The psychological evaluation qualifies Mary for receiving liquidated damages. Accompanying her request for liquidated damages, Mary's past psychological history is relevant and may be examined.
Once all the evidence is gathered, the file is transferred to an arbitrator for review. If a grievance petition only involves actual damages, the arbitrator would make a decision based on the written record. Because Mary's grievance claim involves a request for liquidated damages, either Mary or the veterinarian can request an oral hearing. However, the arbitrator has discretion to deny the hearing request and render a decision based on the written record. Whenever a hearing is held, both parties are invited to attend. The arbitrator interacts with the parties, may receive additional testimony or evidence and can observe the grievant's demeanor. The arbitrator may announce a decision at the hearing or later, with the decision being supported by written documentation. Under the program, no appeal of an arbitrator's decision would be allowed.

CONCLUSION
Many Americans view their pets as special and are willing to expend monies to maintain the quality life of their pets. Given their attachment to these animals, when a veterinarian is negligent in causing injury to or the death of a pet, owners feel they should be compensated. Under existing law, companion animals are often valued as property, meaning that companion animal owners do not feel properly compensated for veterinary malpractice. To respond to this situation, a state legislature may want to consider changing its legal rules to recognize the actual value of these animals.
This study proposes a new program that would avoid excessive litigation and large jury awards while paying modest amounts for veterinary malpractice. By adopting a "Companion Animal Compensation Program," a state could address veterinary malpractice claims in a manner similar to state workers' compensation programs. In exchange for making it easier to collect for malpractice, companion animal owners would give up their right to litigate veterinary malpractice allegations in the courts and would accept modest actual and liquidated damages. A state board of companion animal compensation would establish damage schedules. An arbitration officer would hear grievance petitions, determine qualification of petitioners and set damage awards. While the program would result in payouts to companion animal owners above what are currently being paid by veterinarians, it would eliminate the need for lawyers and juries to resolve veterinary malpractice disputes.