California dog owner awarded $39,000 in veterinary malpractice suit

Jurors find dog's special value far exceeds $10 market value
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An Orange County, California, jury on Feb. 20 awarded a man $39,000 in a malpractice suit against two veterinarians whose actions resulted in the death of his dog. The case made headlines because jurors determined that the 3-year-old, Labrador Retriever mixed-breed adopted from a rescue organization had a special value of $30,000.

"I think it's absolutely, a hundred percent correct ruling," said attorney Terri Macellero. "I always had faith that a jury would agree that, even if the law says a dog is a piece of property, it's a valuable piece of property to the dog's guardian."

Macellero represented Marc Bluestone in his lawsuit against Drs. Craig S. Bergstrom and Robert L. Rooks of All-Care Animal Referral Center in Fountain Valley, Calif. After his dog Shane died of liver failure on April 2, 1999, Bluestone sued the veterinarians for negligence, deceit, and unfair business practices.

Macellero is on the board of the California-based animal rights organization In Defense of Animals, which hailed the verdict for validating the belief that pets are worth more than their market value.

"Most people view their animal companions as members of their families," said IDA president, Dr. Elliot M. Katz. "Negligence and cruelty is unacceptable in a profession that requires compassion, respect, and honesty when caring for animals in need."

In January 1999, Shane started receiving treatment at All-Care for non-life-threatening intermittent seizures.

According to Bluestone's lawsuit against Drs. Bergstrom and Rooks, the veterinarians are accused of, over a four-month period, misdiagnosing Shane's illness, lying about her condition, failing to advise Bluestone of treatment risks, and giving unnecessary and improper medical care that ultimately caused the dog's death. Bluestone ended up paying All-Care more than $20,000 in veterinary bills.

Dr. Bergstrom performed a necropsy on the dog and sent tissue samples for analysis. Liver failure was determined to be the cause of death—a fact, Macellero notes, that lawyers for All-Care succeeded in having excluded from the trial.

Bluestone had Shane's medical records reviewed by an independent veterinarian who concluded that Drs. Bergstrom and Rooks had committed malpractice in treating Shane. Bluestone filed suit in 1999. Even though three California cities—West Hollywood, Berkeley, and San Francisco—refer to pet owners as guardians, under California law, all animals are classified as property, not persons. Bluestone's only recourse for the death of Shane was to sue those he believed responsible for monetary compensation.

The case came to trial in the state Superior Court in January 2004 and went to the jury the following month. After deliberating a day and a half, jurors determined that Dr. Bergstrom had acted negligently, harming Bluestone, but also that his conduct was not intentional. Moreover, neither he nor Dr. Rooks was guilty of intentional misrepresentation.

Additionally, the jury did find that Shane held special value for Bluestone and Dr. Bergstrom knew of it. Although the jury estimated the market value of the mix-breed dog to be $10, it assessed the dog's special value to be $30,000. Jurors awarded an additional $9,000 to Bluestone for "unreasonable" payment to All-Care.

"This is just an emotional verdict, rather than one based on the realities of the facts as they were demonstrated, " said R.Q. Shupe, who represented Drs. Bergstrom and Rooks in the civil trial. Shupe isn't filing an appeal right away. Instead, he plans on asking for a review of the verdict by the judge to clarify the "conflicting" values assigned to Shane by the jury.

"We feel very comfortable with the law that there is not sufficient evidence to support anything unique about this dog," he said. "We think the court will probably rule in our favor on that issue."

Rather than hailing it as a landmark case, lawyers specializing in veterinary malpractice and animal law say the award isn't as groundbreaking as it seems. According to Gregory M. Dennis, a lawyer and member of the American Veterinary Medical Law Association, civil law in the United States has allowed plaintiffs to recover special value damages for lost or damaged property for more than a century.

When it can be established that a defendant knows an item has "peculiar value" before the harm is committed, the California civil code allows the property owner to seek financial compensation beyond the item's market value, Dennis explained.

The usual standard for assessing the amount of monetary compensation for lost or damaged property is the item's value at the time of destruction, explained Dr. Duane Flemming, a lawyer and veterinary ophthalmologist in Pleasant Hills, Calif. For instance, the value of a wrecked car is its market value prior to the accident. The same standard is applied when an animal is injured or killed.

In cases where property has no market value, such as a family photo album, state law does recognize an item can have intrinsic value to the owner. No quantitative measure exists for assessing intrinsic value, making such determinations difficult, according to Dr. Flemming.

The AVMA policy on this issue states the AVMA "recognizes and supports the legal concept of animals as property. However, the AVMA also recognizes that some animals have value to their owners that may exceed the animal's market value. In determining the real monetary value of the animal, the AVMA believes the purchase price, age and health of the animal, breeding status, pedigree, special training, and any particular utility the animal has to the owner should be considered" (see JAVMA, July 1, 2003, pg. 15).

Dennis and Dr. Flemming stressed that the verdict should not be misunderstood as an emotional distress award. Those are rarely granted for the loss of a pet.

"This jury did not give an emotional distress award. This jury did not give a loss of companionship award. This jury did not give a punitive damage award. What it did was give a special value award," Dr. Flemming explained.

"We all have a feeling that there's this intangible loss when an animal's taken from us in a negligent fashion, that should be compensated," he continued. "That's basically what this jury is saying."

The verdict doesn't set a precedent, nor is any other court in the country obligated to follow the jury's reasoning in assessing the special value of Shane. If an appellate court were to reaffirm the verdict, however, then it could be cited as guidance in similar lawsuits. "California has not yet done that," Dr. Flemming noted.

Dr. Flemming pointed out that these kinds of cases can also affect professions other than veterinary medicine. As proof, he cites a lawsuit filed in Alameda, Calif., in which the owner of a cat lost during transportation is seeking $5 million in damages from Air Canada. Similar lawsuits have been filed against pet groomers, animal shelters, and police departments. One person was sued for striking a dog while driving.

"Anybody who deals with animals is faced with this issue of whether or not our society wishes to compensate people over and beyond market value of these animals," Dr. Flemming said.

In his opinion, organized veterinary medicine must take the lead by identifying which animals should be recognized as having intrinsic value, to avoid bigger legal headaches in the days ahead.

"The bigger concern is if the court decisions aren't appropriate or, more importantly, if any legislation is introduced that isn't wisely considered and very carefully worded, it's going to create a morass that will be extremely difficult to deal with in lots of areas, over and above veterinary medicine."