Damage Control

As more states contemplate permitting non-economic compensation to aggrieved pet owners, the veterinary profession needs to step up in opposition.

Originally published in Today’s Veterinary Business.

Many times on these pages, I’ve called on the veterinary profession and animal health industry to embrace change. I’ve explained that we face a perfect storm of rising pet ownership and growing demand for medical care amid sharp and chronic shortages of veterinary professionals. Many things need to change because of those issues. This month, however, I want to summon the profession and industry to rally in New York (and elsewhere soon) to resist a change that would devastate pets, pet owners and veterinary practices.

A Legislative Six-Pack

The tide is turning regarding non-economic damages. Since 2019, six states (all blue) have introduced legislation removing barriers to non-economic damages: Delaware, Mary-land, Massachusetts, Nevada, New York and New Jersey. We could have anticipated the rising tide given the growing awareness of the human-animal bond and how millennials view pets as central members of their families. What’s important to remember is the seemingly sterile phrase “non-economic damages,” which relates to emotional harm or loss of companionship — the sort of damages that skyrocketed insurance premiums in human medicine.

Maryland is where we’ll start since that state allows non-economic damages of up to $10,000 for injuries to a pet. It’s too late to unwind the thinking and negotiations that led to that decision, but we see the consequences now. While $10,000 might not seem like enough money for a lawyer to file a lawsuit in the hope of gaining a 33% contingency fee, the caps have a way of expanding. Proponents this year filed legislation that would raise Maryland’s cap to $25,000.

That’s how caps work — start low and ramp up as time goes by. Organizations opposing the bill on behalf of the veterinary profession negotiated the newly proposed cap down to $15,000. But do the math and you’ll see a 50% increase in one legislative session. Are we to assume that $15,000 is the limit in Maryland? I’ll take the under on that proposition. Massachusetts has a similar bill under consideration with a cap of $25,000.

What New York Proposes

So, the door is open, and New York wants to jump through it. The state’s Senate Judiciary Committee passed a bill in May 2021 without a cap on non-economic damages, but the Legislature adjourned a month later, and the bill advanced no further. Now, the bill has been revived and is back in the committee, where we could see a similar result. Or not.

Of note, the bill was amended cleverly to lull veterinary medicine to sleep. Let’s examine S6027-B. The italicized text reflects the matters bearing special attention:

• “An act to amend the general obligations law in relation to establishing a cause of action in tort for the wrongful injury to or death of a companion animal.
• “… The general obligations law is amended by adding a new section, 11-108, to read as follows:
• “… A person who with no justifiable purpose intentionally, recklessly or negligently by act or omission causes the death of a companion animal shall be liable in damages for: the fair monetary value of the deceased companion animal to his or her owner; mental distress or emotional harm suffered by the owner or members of the owner’s household caused by the death of the companion animal; the expenses of veterinary and other special medical care required; and other reasonable damages resulting from the intentional, reckless or negligent act or omission.
• “A person who with no justifiable purpose intentionally, recklessly or negligently by act or omission causes physical injury or serious physical injury to a companion animal shall be liable in damages for: the expenses of veterinary and other special medical care required; mental distress or emotional harm suffered by the owner or members of the owner’s household caused by the physical injury or serious physical injury to the companion animal; and other reasonable damages resulting from the intentional, reckless or negligent act or omission.
• “A person who with no justifiable purpose intentionally or recklessly by act or omission causes the serious physical injury or death of a companion animal may be liable in punitive damages.
  “In any action brought under this section, the court may award reasonable attorneys’ fees to a prevailing plaintiff.
• “An action for recovery of damages under this section may be brought in any court of competent jurisdiction.
• “No action shall be brought under this section against a veterinarian for injury or death sustained during the course of the lawful treatment of a companion animal.”

What do we have here? Negligence causing harm (injury or death) to a pet allows for:

• Damages for mental distress or emotional harm.
• “To the owner or members of the owner’s household.”
• Attorneys’ fees.
• No cap, leaving a jury to set the amount it deems fit.

Other Ramifications

We should cheer because the latest version exempts veterinarians, right? Our answer must be a resounding “No!” You might assume that the bill’s sponsors made the change solely to pass the legislation, anticipating veterinary opposition. Here are four reasons the bill must be stopped:

• Every other person and organization involved with pets are at risk, including trainers, groomers, day care facilities, dog walkers, pet sitters, pharmaceutical manufacturers, distributors, retailers, pet food companies and more. Watch insurance premiums and costs increase for those players, who will pass them along to consumers, who will pause before getting another pet due to the rising costs.
• Then, watch the next New York legislative session, when the bill is amended to add veterinarians under the argument that excluding those professionals isn’t fair when other pet businesses and employees are held to a higher standard.
• Then, watch veterinary prices increase as liability insurance underwriters factor in the risk of unlimited damages.
• Finally, the growth of the human-animal bond slows in the United States as the price of having a pet and access to care becomes unsustainable.

We all respect and, in most cases, personally have suffered the sorrow of losing a pet. But is the price of unlimited damages and lawyers’ bonanzas worth it? The answer has always been no.

Now is no time to change that answer.