Tootsie was brought to Diane R. Craig's veterinary clinic for surgery. According to evidence presented in court, the surgery was successful, but then there were a series of errors, blunders and purportedly unethical events. Although Tootsie should not have received any food, she was given water mixed with baby food within two hours of her surgery to test her ability to swallow. The dog unfortunately breathed that mixture into her lungs and died. It appears that Dr. Craig later altered Tootsie's medical records to hide her apparent negligence which was only discovered after an autopsy. Three days after the operation, it appears that Dr. Craig shamelessly charged McMahon's credit card for the surgery knowing Tootsie's owner would be unwilling to pay for her treatment under the circumstances.

     McMahon then turned to the courts and sued. Had she stuck to asking for recovery of funds due to veterinary negligence and misrepresentation we would not be talking about this case now, and she probably would have recovered the cost of replacing her dog and the fees that were charged to her. However she added clauses which involved requesting a penalty for the emotional distress and loss of companionship that resulted from the death of her dog. The distress must have been quite severe since she was asking for $100,000. The trial court threw out the case, and McMahon immediately appealed.

     When the case reached the Court of Appeal it had expanded greatly in scope. Now some pretty powerful groups were involved. The very high powered Washington DC lawyers, Victor Schwartz and Philip Goldberg were called on to submit amicus briefs on behalf of a number of veterinary and pet associations. Some were predictable participants, since they had a monetary interest in the outcome either as representing veterinarians or providing products to veterinary clinics, such as the California Veterinary Medical Association, Animal Health Institute, American Animal Hospital Association, American Pet Products Association, American Veterinary Medical Association, and the Pet Industry Joint Advisory Council. Two groups, however, stood out in the group of associations filing briefs, namely the American Kennel Club and the Cat Fancier's Association who represent pet owners and breeders. What was the basis of their involvement in this case?

     Basically the briefs filed for these organizations suggested that a judgment awarding emotional damages in Tootsie's case might have a number of severe, unintended, consequences. First of all, veterinarians would now have to carry large, expensive, malpractice insurance policies, which in turn would raise the cost of veterinary care dramatically, and perhaps lead to some of the same, expensive, defensive, medical practices that plague physicians that deal with human medical problems. If the prices of veterinary care rise, then the cost of pet insurance would be sure to also go up, while the number of pet owners seeking preventative care for their pets, or perhaps even necessary interventions, would diminish, resulting in more animals that are unhealthy, in pain and short lived. Certainly much veterinary pro bono work would disappear, such as free spaying and neutering, because of possible legal repercussions. Furthermore these consequences could filter down to other pet service providers who might inadvertently cause harm to a dog, so that dog-walking, grooming and boarding fees could rise, or these services just might become unavailable. Perhaps their arguments pushed the envelope of believability by suggesting that it was possible that friends of pet owners wouldn't pet-sit for fear of being sued if something happened to the animal, but I am sure that you get the general thrust of the arguments that concerned the American Kennel Club and the Cat Fancier's Association. Unfortunately, when I gave the problem some careful thought, some (although not all) of these feared outcomes seemed to have a reasonable likelihood of occurring.

     The Court of Appeal did a careful review of the existing laws, analyzed several cases and wrote: "There is no doubt that some pet owners have become so attached to their family pets that the animals are considered members of the family. This is particularly true of owners of domesticated dogs who have been repeatedly referred to as ‘Man's Best Friend' and a faithful companion ..." However the judges did not continue down this path, but rather noted, "Although we live in a particularly litigious society, the court is not about to recognize a tortious cause of action to recover for emotional distress due to the death of a family pet." The court recognized the "peculiar value" Tootsie had to McMahon, but limited those damages to the cost of replacing Tootsie, ruling out sentimental value.

     Apparently the arguments offered on the basis of the interested associations also carried some weight, since the court added that in its opinion, "Extending emotional distress damages to owners of companion pets based on veterinary malpractice would have unknown consequences on both the cost and availability of veterinary care."

      Then the court extended its discussion to compare the loss of a pet to the loss of a child under the care of a physician, saying that, "Regardless of how foreseeable a pet owner's emotional distress may be in losing a beloved animal, we discern no basis in policy or reason to impose a duty on a veterinarian to avoid causing emotional distress to the owner of the animal being treated, while not imposing such a duty on a doctor to the parents of a child receiving treatment."

      In its summation the court also said that it recognized "the love and loyalty a dog provides creates a strong emotional bond between an owner and his or her dog. But given [that] California law does not allow parents to recover for the loss of companionship of their children, we are constrained not to allow a pet owner to recover for loss of companionship of a pet."

      This is not an atypical ruling specific to California since another case asking for emotional damages for loss of a dog went all the way up to the Vermont Supreme Court which reached the same verdict. Furthermore, appellate courts in about 30 states have now rejected similar claims of emotional damage.

       So here is the question: obviously our dogs are important in our emotional lives, so should courts award penalties for the emotional consequences and loss of companionship when someone causes injury or death to our pet-even if the end result is higher cost and reduced availability of veterinary care for the vast majority of pet owners-even when we do not impose such penalties when parents lose a child due to medical misadventure?