California court rejects emotional distress damages for vet malpractice

McMahon v. Craig, No G040324, slip op at 2 (Cal Ct App July 31, 2009).
In claims against a veterinarian the California court’s constrained definition of “special value”, contrasts with that followed in Oregon, and deprived family of emotional distress damages.

In a recent decision, the California Court of Appeals refused to recognize an animal’s “peculiar value” as including anything beyond “characteristics that enhance its economic value . . . .” McMahon v. Craig, No G040324, slip op at 2 (Cal. Ct. App. July 31, 2009). The court also declined to extend the loss of companionship tort to actions involving companion animals. Id. at 19.

Plaintiff Gail McMahon brought emotional distress and loss of companionship claims after her Maltese died of likely aspiration pneumonia under veterinarian Diane Craig’s care. Id. at 4. Ms. McMahon alleged the vet negligently gave food too soon after surgery to correct the dog’s laryngeal paralysis. Id. at 3-4.

The court reasoned that the plaintiff “was neither a witness nor a direct victim of [the] defendants’ negligent acts” and thus could not obtain emotional distress damages for negligence. Id. at 6-13. Finding the vet’s conduct insufficiently outrageous, it struck an intentional infliction of emotional distress claim. Id. at 13-16. Finally, it limited proof of special value to those attributes “evidenced by the original cost, and the quality and condition at the time of the loss.” McMahon, No G040324, slip op at 18.

As in California, negligent infliction of emotional distress in Oregon generally requires physical injury. Hammond v. Central Lane Commc’ns Ctr., 312 Or 17, 25, 816 P2d 593 (1991). The California court’s constrained definition of special value, however, contrasts with that followed in Oregon. As established in McCallister v. Sappingfield, an Oregon plaintiff “may prove [a dog’s] special value to him by showing its qualities, characteristics and pedigree . . . .” 72 Or 422, 427, 144 P 432 (1914).

The McMahon court essentially treated special and market value interchangeably. McMahon, No G040324, slip op at 18-19. It left to the California legislature any changes in the law to reflect that “the love and loyalty a dog provides creates a strong emotional bond” justifying compensation. Id.

As might be expected, the veterinary industry praised the decision. The Animal Health Institute, members of which purportedly “invest hundreds of millions of dollars on the innovations, research and science necessary for advances in pharmaceuticals, biologics, and pesticides for animals,” asserted that a contrary result would actually hurt pets.

But evidence shows that the industry’s argument is without foundation. As author Christopher Green has noted in his excellent article, The Future of Veterinary Malpractice Liability in the Care of Companion Animals, 10 Animal L. 163, 176-77 (2004), “Louisiana, Texas, and Florida each first awarded punitive or emotional damages for companion animal harm in the early 1960s, yet no deluge from ‘opening the floodgates of litigation’ ever materialized in any of those states during the forty years hence.”

The most comprehensive law on damages in companion animal negligence cases appears to be the Humane Care for Animals Act (”HCAA”), passed in Illinois in 2002. Under that statute, “[d]amages may include, but are not limited to, the monetary value of the animal, veterinary expenses incurred on behalf of the animal, any other expenses incurred by the owner in rectifying the effects of the cruelty, pain, and suffering of the animal, and emotional distress suffered by the owner.” 510 Ill. Comp. Stat. 70/16-3 (2002).

Even with such a broad definition of damages, however, Illinois has seen no emotional distress claim deluge. The McMahon court was bound by existing precedent, but unfounded fears of a litigation explosion should not stop the California legislature from enacting a new law akin to the HCAA.

Until then, McMahon clarifies that the distress inflicted on Californians by negligence directed toward their animal companions will go uncompensated. Coupling that decision with a limitation of the measure of an animals’ worth to market value indeed gives the veterinary industry reason to rejoice—and companion animal guardians a reason to exercise extreme caution in choosing a veterinarian.

Compare: the recent arbitration award of $16,675 in the case of DeGidios v. Moore, in which the Arbitrator awarded $10,000 for the “intrinsic value” of the German Shorthair Pointer shot with a pellet rifle by the defendant after allegedly being caught harassing livestock around the Fort Lewis area in Western Washington. See., Washington State Bar Animal Law Section Newsletter Vol 7. No.3 Spring 2009.

The Law Office of Dane E. Johnson is an Oregon animal law and personal injury law firm ready to assist with all animal-related legal issues. Please contact us at (503) 975-8298 or visit our website. Oregon animal lawyer Dane Johnson offers a free case consultation.