/publications/issue/2010/January2010/PharmacyLaw-0110

Pharmacy Law: Recovery of Damages for Death of a Pet?

Author: Joseph L. Fink III, BSPharm, JD

Dr. Fink is professor of pharmacy law and policy at the University of Kentucky College of Pharmacy, Lexington.


Issue of the Case
A case in New England presented 2 questions arising from the death of a pet as a result of alleged negligent acts of veterinary pharmacy staff and 4 veterinarians—first, may the owners recover an amount of damages for “noneconomic” loss; second, may the owners recover for negligent infliction of emotional distress? Noneconomic damages are subjective damages such as pain, suffering, loss of companionship, and infliction of mental stress.

Facts of the Case
The owners of 2 cats were having them treated for hypertension by the defendant veterinarians who prescribed amlodipine 1.25 mg once daily in each animal, dispensing it from the veterinary clinic. The medication had been obtained by the veterinarians from an out-of-state compounding veterinary pharmacy. The first round of therapy seemed to go fine, but upon obtaining a refill of the medication from the veterinarians, the owners noticed negative changes in their pets. One cat was taken in and diagnosed with a respiratory illness, receiving an antibiotic. The next day, one of the veterinarians was informed that the condition of both cats was worsening and they were resisting taking the antihypertensive medication.

On the fourth day, following use of the refilled medication, the owners rushed 1 of the cats to the clinic, where it died hours later. While that cat was under treatment, the owners brought in their other pet. Treatment could not save the second cat either, and it died.

The Court’s Ruling
The owners of the cats alleged at trial that the compounded medication contained at least 20 times the labeled dosage of the active ingredient. The allegations against the veterinarians were that they negligently failed to diagnose the toxicity in the cats and that their treatment efforts were improper. The lawsuit sought compensation for the damages suffered by the owners, including the lost companionship and society of the pets, and for the emotional distress for having been “made the unwitting agents of their pets’ demise.” These claims for noneconomic damages were dismissed by the trial court, and the plaintiffs filed an appeal with the state Supreme Court. The state’s highest court agreed with the trial court that the claims should properly be dismissed.

The Court’s Reasoning
The court’s opinion pointed out that under long-standing legal principles, pets are viewed as personal property, with the legal measure of damages for such things being the “fair market value before the injury less fair market value after the injury.” The plaintiffs argued that companion animals have special characteristics that make it illogical to treat them the same way the law would treat agriculturally useful animals or inanimate objects.

These arguments of the pet owners were bolstered by 3 amicus curiae (friend of the court) briefs filed by a group of animal advocates—Animal Legal Defense Fund, American Kennel Club, Pet Industry Joint Advisory Council, and several others. Amicus briefs are usually filed by advocacy groups who are not parties to the lawsuit, with the goal of informing the court about added dimensions or context of the issues under consideration.

At least 1 of these advocacy groups asked the court to adopt the view that pets are more properly viewed as members of the family rather than personal property. If that were the appropriate interpretation, recovery for noneconomic loss would be available. The court noted, however, that recovery is not available for loss of relatives in many categories—“grandparents, grandchildren, nephews, aunts and uncles, as well as for the loss of nonrelatives like stepchildren, fiancés, or other closely held companions.”

Acknowledging that pets have special characteristics as personal property, pets did not, in the view of the court, rise to the level of direct kin that would to be basis for recovery for noneconomic loss. The court recommended that such arguments for expansion of coverage for wrongful death action would be better addressed to the legislature.

With regard to the second issue, recovery for negligent infliction of emotional distress, the justices reviewed the 4 elements needed to establish a legal claim. Lacking in this case were these 2 necessary components—the plaintiffs were not within the “zone of danger” of the acts negatively affecting their cats, and they were not subject to “a reasonable fear of immediate personal injury.” Consequently, even if the pet owners were able to show some physical manifestation of their distress, they were not entitled to recovery. ■