On the morning of August 3, 2016, my husband and I took our one-year-old dog, JJ-Blue, to a local veterinary to be neutered. I informed the tech that JJ had a retained testicle. Later that day, at 1:20 PM, I called to see how the surgery went and how he was doing. I was told the surgery went very smoothly and both testicles were removed. When I called at 8:30 AM on August 4, I was told JJ was recovering well and was eating and drinking. At 1:20 PM on August 4, I called again and was told that he could go home the next day after 1:00 PM. But at 8:03 AM on August 5, the veterinarian called and told me that our dog had just died from a stroke or perhaps a blood clot to the brain. I was stunned. He mentioned JJ had collapsed the day before at about 3:00 PM, though no one called to inform me about this alarming event.
When I arrived at the clinic, I asked the tech for an itemized statement of my dog's treatment and to speak to the veterinarian. I was rudely told that two customers were ahead of me but she would let the doctor know I wanted to talk to him. As she walked away, she said, "I don't have time for this shit today." After my husband got our dog in the truck, I left without talking to the veterinarian. There was no apology or expression of sorrow from the veterinarian or his staff on this occasion or subsequently.
On the same day, I took JJ to another veterinarian for a necropsy. The other veterinarian noticed blood in his nose and mouth and bruising all over his abdomen. Upon incision, the other veterinarian was shocked at the amount of blood clots in his abdominal cavity. The examination showed that the retained testicle had not even been removed despite the earlier representations to the contrary. Furthermore, during surgery, the first veterinarian had apparently caused damage to internal vessels inside the abdomen causing my dog to bleed to death over a significant period of time. Based on the statements of the second veterinarian during and following the necropsy, it seems the first veterinarian and his staff were blatantly negligent in performing the surgery on our dog and in their post-operative care.
I have filed a complaint with the Texas State Board of Veterinary Medical Examiners. The second veterinarian has filed a report that is very critical of the first veterinarian. At the website of the Texas State Board of Veterinary Medical Examiners, one can obtain information about a veterinarian including any disciplinarian action taken against the veterinarian. There is also a website (http://texasveterinaryrecords.com/index.html
that allows one to search the disciplinary records of Texas veterinarians, though it is not associated with the Texas State Board of Veterinary Medical Examiners. It appears from this public service site that the first veterinarian has had more than his fair share of complaints.
I contacted an attorney about any legal remedy that I might have against the veterinarian. I was told there is probably little I could do beyond recovering the market value of my dog. For purposes of awarding monetary damages to an owner, Texas courts have traditionally viewed pets as inanimate, personal property, like a toaster or a pistol. In 2013, the Texas Supreme Court affirmed this law in Strickland v. Medlen. But the high court went on to say that in some instances a pet is worth even less: While the owner of a family heirloom or keepsake can recover money damages for the sentimental value of an item having little or no value, a pet owner can recover nothing for his "subjective feelings." The Court excused this obvious incongruity with the facile observation: "Tort law cannot remedy every wrong. Lines, seemingly arbitrary, are required." Due to the Strickland decision, it appears that my husband and I may be limited to recovering only the $200 that we paid for our dog, though he was worth far more to us.
I understand there may be sound policy reasons for limiting the circumstances as well as the money an owner may recover for the mental anguish resulting from the death of a pet. The Strickland court raised the specter of a "cottage industry of pet litigation" in which Texans sue for the injuries or deaths to their pets involved in "car accidents, police actions, veterinary visits, shelter incidents … and pet-on-pet aggression." In such a litigious society, according to the Texas Supreme Court, "there would be fewer free clinics for spaying and neutering, fewer shelters taking in animals, fewer services like walking and boarding, and fewer people adopting pets, leaving more animals abandoned and ultimately put down."
The powers of imagination of the Texas high court are indeed rich when conjuring a world with litigation run amok. Such powers serve it well in shutting off any monetary recovery for the mental anguish an individual experiences from the death of his/her pet. But the court suffers from poverty when trying to imagine my world. I live in a world in which there may well be no legal remedy for my mental anguish due to a badly botched surgery on a healthy, young dog, who likely suffered many hours of internal bleeding at the hands of a veterinarian and his staff who have shown no sympathy much less remorse. And I live in a topsy-turvy world where I can sue and recover for the mild mental anguish that I would feel if the veterinarian had lost JJ's collar, but nothing for the keen mental anguish for the loss of JJ himself.
In fairness to the Texas Supreme Court, it said it was mindful of the affection Texans have for their animals. It admitted that "a beloved companion dog is not a fungible, inanimate object like, say, a toaster." It noted that losing a pet dog is "undoubtedly sorrowful," and "even the gruffest among us tears up (every time) at the end of Old Yeller." The court seemed caught in a dilemma between its soft heart and its hard head, much like Captain Vere in Hermann Melville's Billy Budd. In that story, the captain is compelled to sentence the beloved Billy Budd to death for striking and accidentally killing a sadistic and hated officer because it was the punishment prescribed by law. But there are differences between the plights of the Texas Supreme Court and Captain Vere. The latter was obeying a law that he was bound to obey and had no power to change. The former, on the other hand, was not merely obeying a law that it had itself created (i.e., "pets are property") but it was refusing to follow its own law that allows for property owners to recover damages for "the loss or destruction of items which have their primary value in sentiment." The bogeyman of a "cottage industry of pet litigation" was just too strong.
After refusing to dispense any "emotion-based" justice, the Texas Supreme Court charged the Texas Legislature with enacting laws regarding non-economic damages for bereaved pet owners. The Court apparently never thought to render justice in the case before it and then invite the Texas Legislature to address any concerns raised by the possibility of rampant litigation. In any case, the Court pointed out that in 2000, "Tennessee enacted legislation authorizing non-economic damages, up to $5,000, when someone negligently or intentionally kills a companion animal." After carefully considering the pros and cons of similar legislation, the Texas Legislature could, in the words of the Supreme Court, "craft meticulous, product-of-compromise legislation that allows non-economic damages to a controllable and predictable degree."
By this petition, I am asking the Texas Legislature to take up the challenge of the Texas Supreme Court and enact legislation allowing for non-economic damages for the wrongful death of a pet. I understand that it might be advisable that such damages be limited to a dollar amount and/or be available only in the event of gross negligence or clear and convincing negligence. But the void or near total void that exists in this area of the law is a wrong that needs to be righted. I ask all of those in support of this petition to contact their state representatives and ask them for reform in this area. I also request that they join the Texas Humane Legislation Network (THLN), and contact THLN about this matter. If proper legislation is passed so that pet owners are afforded some relief for their sorrow without unduly ratcheting up the costs for pet care, which should improve due to more accountability, then our sorrow will be much alleviated by the thought that our beloved dog, JJBlue, did not die wholly in vain.
My attorney assisted me in writing this petition.