Monday, October 19, 2009

Breyer v. AVMA

(Feels like that some days at any rate....)

Just a quick bit of self-promotion here... This month, GP Solo (the ABA's General Practice, Solo & Small Firm Division magazine) published my letter to the editor. The letter comments on the AVMA's rather unabashed propaganda piece in the summer issue of the magazine, which focused on Animal Law. That issue is available through the ABA website. Click here. (Not sure if you have to be a member to view it.)

The new issue is not available on the web yet. But since I'm the author (and heaven knows I'm always scraping around for blog content anyway), here it is:

Dear Editor:

Thank you very much for devoting an entire issue to “Animal Law” [July/August 2009, vol. 26, no. 5]. As an animal law practitioner, it was terrific to see this topic get the attention it so increasingly deserves!

Unfortunately, the article on “Non-Economic Damages in Pet Lawsuits” amounted to little more than an unrebutted forum for the American Veterinary Medical Association to advance its own agenda. I would like to take this opportunity to offer a counterpoint.

The AVMA begins by acknowledging that many people think of their animals as more than property but then warns that permitting non-economic damages for their negligent harm would cause veterinary insurance premiums to rise, rabies to become prevalent, animals to be abandoned, prices to increase on everything from pet supplies to auto insurance, and police officers to be hesitant to shoot rabid animals.

The authors, however, offer no data to support any of these dire predictions. In fact, the veterinary insurance industry’s own data suggests that permitting non-economic damages would translate to an increased cost of only about 13 cents per owner, and even if premiums “truly skyrocketed by 100 times their current level,” this would still only translate to a “cost increase of $11.50 per pet-owning household” (C. Green, “The Future of Veterinary Malpractice Liability in the Care of Companion Animals,” Animal Law, vol. 10, 2004, pp. 163, 218, 219).

The AVMA is likewise entitled to its “opinion that large recoveries have been a factor in the skyrocketing of health care costs,” however it offers no evidence here either. Government studies have not supported this conclusion. U.S. Government Accounting Office, Medical Malpractice: Implications of Rising Premiums on Access to Health Care, p. 2, 2003. (website omitted due to Blogger limitations; see article) (last visited Aug. 11. 2009) Private studies have flatly rejected a correlation between states that have enacted damage caps and premium rates for doctors. True Risk: Medical Liability, Malpractice Insurance and Health Care. Americans for Insurance Reform. (website omitted due to Blogger limitations; see article) (last visited Aug. 11, 2009).

If fears of spiraling costs are unfounded, perhaps other concerns have also been greatly exaggerated. For example, allowing non-economic damages will not “impose” an adversarial relationship between vets and clients. Animal owners will not be required to sue their vets, and those that do are likely already in an adversarial relationship. Police officers’ conduct is also unlikely to be affected, as anyone even arguably acting under color of law will not have to pay a judgment out of his or her own pocket.

The AVMA likewise mixes apples and oranges by arguing that permitting non-economic damages will elevate human-animal relationships above some human-human relationships. A claim for “negligent infliction of emotional distress” is narrower and protects fewer relationships than a claim for emotional loss as a component of compensatory damages. As a result, seeking damages for the injury or death of a beloved companion is not a referendum on which type of relationship is more valuable.

The AVMA’s attempts to counter some frequently cited reasons for permitting non-economic damages wither under scrutiny. The suggestion that criminal cruelty statutes already serve the purpose of recognizing the value that owners place on their animals fails to mention that such statutes routinely exempt veterinary practices. The suggestion that any need to deter veterinary negligence is already served by veterinary medical boards fails to acknowledge that these boards do not offer the remedies afforded by a private right of action. And the AVMA’s attempt to dismiss the entire issue of non-economic damages by suggesting that “only a small number of animal rights activists and attorneys are pushing this issue” ignores their own statistics: 60 percent of U.S. households have companion animals. If even 1 percent believe their companions to be worth more than an economic analysis, that’s still roughly 3 million people.

Veterinarians (and other animal-related product/service providers) earn their entire livelihood based upon the reality that owners are willing to spend more to care for their animals than it costs to simply replace them if they become ill or injured (Steven M. Wise, “Recovery of Common Law Damages for Emotional Distress, Loss of Society, and Loss of Companionship for the Wrongful Death of a Companion Animal,” Animal Law, vol. 4, 1998, pp. 33, 47). And yet, the AVMA is the first to argue that any recovery should be limited to economic measures only. Such arguments are increasingly indefensible. The law has evolved to recognize reality and reject such arguments in other areas. It should do the same here.

Amy A. Breyer
Chicago, Illinois

Ms. Breyer opened Illinois’ first animal law practice in 2002. She founded the Chicago Bar Association’s animal law committee in 2003 and the Illinois State Bar Association’s animal law section in 2009. Ms. Breyer has taught several animal law courses and lectures on the topic around the country.

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