Just One of Those Things

In veterinary malpractice cases, your pet is nothing more than property. One local attorney is aiming to convince judges otherwise, and make vets pay.

Navy Commander Julie Hendrickson already had 20 dogs living with her at her house in Kingston. So when she spotted a 100-pound golden retriever wandering along a busy road one night in 2006, she did what came naturally. She took the dog home.The retriever, whom Hendrickson called Bear, soon earned a special place in the commander's heart. He was the one dog of the lot who got to travel with her every day to Bremerton's Naval Hospital, where she worked as a nurse.But the day she took him to be neutered, something changed. Immediately after the procedure, Bear started panting and acting lethargic. Hendrickson says staff at the Ridgetop Animal Hospital in Silverdale, where the procedure was performed, told her Bear ingested some gas during surgery. The hospital recommended Gas-X. Hendrickson thought that would be too hard for Bear to swallow, so she opted for a homeopathic remedy instead.A few hours later, Bear collapsed on the driveway of Hendrickson's home. A neighbor drove the dog to an emergency facility, while the Navy nurse performed CPR on Bear in the back seat. But the dog was dead by the time they arrived. Hendrickson, 41, says she took a week off from work to recover emotionally.Only later, says Hendrickson, did she come to understand that Bear's gas had actually been life-threatening—that he'd been suffering from bloat, a frequent and fast killer of dogs. She says Ridgetop staff did not convey to her the seriousness of his condition. She also later learned of an emergency surgery—one the Ridgetop veterinarians didn't do—that involves inserting a tube into the dog's stomach to remove the gas. (An attorney for the hospital, John Schedler, says the procedure is highly risky.)A year later, feeling that the hospital had mishandled the case, Hendrickson sued Ridgetop and the veterinarians who had worked on Bear, alleging negligence.This sort of suit is extremely uncommon. Experts estimate that no more than a handful are filed each year statewide, compared to hundreds alleging malpractice in treatment of humans. That's in part because, unlike medical-malpractice complaints, which can result in multimillion-dollar awards, suits against veterinarians don't have a high potential payoff. In most cases, pet owners are entitled to the simple replacement cost of the animal and, if they're lucky, the cost of veterinary bills.However much you may view your pet as a beloved companion and full-fledged family member, in the eyes of the law she's a piece of property—nothing less and nothing more. It's a principle that dates all the way back to the Code of Hammurabi, to the days when animals really were people's main property holdings.Hendrickson's suit—along with legislative lobbying and other efforts around the country—is seeking to challenge that notion. In her complaint, Hendrickson has asked to be compensated not just for Bear's retail value, but for the "emotional distress" she endured after losing him—just as someone who had lost a spouse or child in a malpractice case would receive payment for pain and suffering.Last year, a Kitsap County Superior Court judge dismissed Hendrickson's bid for emotional damages, saying she could only be compensated—should Ridgetop be found at fault—for her "economic loss." Hendrickson has appealed.It's a quixotic campaign that finds hope in judicial footnotes and other small advances. Yet even the president of the Washington State Veterinary Medical Association, Port Orchard veterinarian Carrie La Jeunesse, believes it will succeed. "Personally, I think in time that's going to change," she says of the current legal status of pets. "The playing field feels like it's shifting, and there's a big movement afoot to make that happen."The campaign isn't just about winning bigger awards; it's about trying to impose greater accountability on a veterinary profession that, in the view of some animal activists at least, doesn't face nearly enough."You've probably talked to Adam Karp," says Schedler, the hospital's lawyer. It's one of the first things out of the mouth of anyone asked about this movement.Many lawyers will occasionally pick up a case involving animals. But Karp, who is representing Hendrickson, is one of the few attorneys in the state who has made it his exclusive full-time practice. A proud owner of five cats, Karp likes to drop quotes from a variety of sources—Matisyahu to Audre Lorde—in his musings on the law as a tool to elevate animals' status. Currently, he says, animals are basically treated as slaves once were.Karp takes cases from all over the state, representing people whose pets have been declared dangerous by municipalities, or who want to create "trusts" that will care for their animals after their death, or who are embroiled in custody battles. Then there is the ever-growing number of owners outraged over their pets' veterinary care. He estimates that out of 200 calls a year he gets from potential clients, about 40 percent are from people claiming malpractice.To foster animal rights, Karp is actively seeking more competition—that is, more lawyers who'll do what he does. He's organized an animal-law "section" through the Washington State Bar Association, and has convinced the UW and Seattle U law schools to let him teach their students."You need to be brave," the goateed 37-year-old, wearing a tie with soaring eagles, told a class of future lawyers at SU one recent day."I'll be honest, I lose most of my cases," he confessed. "Eventually you'll succeed in pushing that pebble a little further." (He later e-mailed the Weekly to clarify that he was referring only to his most far-reaching cases, not his overall practice.)Another axiom he tells SU students: "Don't be a wacko." It's a principle that fellow attorneys would suggest he has not always followed.In 2003, for instance, shortly after Karp had petitioned the state bar to start a new animal-law section (sections are essentially networking groups, allowing lawyers in different fields to trade ideas and hold educational events), he published an article in the bar newsletter to whip up enthusiasm for the group's inaugural event. His first line: "I believe that animals should be able to sue for heinous cruelties committed upon them."Not animal owners. Animals themselves."I simply assumed that Mr. Karp's article was an early April Fool's joke," wrote one of the many attorneys who submitted letters to the editor in response.Still another, John Bundy, the president of Seattle's Glacier Fish Co., wondered semi-facetiously whether Karp would have him held liable for the pollock killed by his firm. "Am I just paranoid about Professor Karp and the students learning at his feet at Seattle University?" he wrote. Bundy also asked the obvious question: "To whom would damages go, other than the plaintiffs' lawyers?""It's a good question," admits Karp, drinking a smoothie and eating a "raw" granola bar at a Starbucks across from SU. "There's no easy answer."You might say, then, that Karp feels he's being downright moderate when it comes to the Hendrickson case. "You will notice I'm not asking that the dog's 'estate' be allowed to sue," he observes. "That is a huge difference."Even though Karp's petition on behalf of Hendrickson has not yet met with success, he points to other recent decisions that he thinks are gradually opening the way to bigger judgments in cases of veterinary negligence.One case of his involved a tiny red poodle belonging to Arlene Sherman, former owner (with her son) of the now-defunct Zone Seattle diet-food delivery service. The poodle, called Ruby, bled to death after a vet attempted to get a urine sample by sticking a needle into the dog's bladder. Sherman says she had left Ruby behind with the vet with the clear understanding that the dog would provide the sample by peeing on a plastic sheet beneath her cage.In an interview and in court documents, the veterinarian, Jennifer Kissinger, says she was never given that information and did nothing wrong. She says the procedure she did is the only valid way to get a sample, given that pee on a plastic sheet would be contaminated with hair, dirt, and paw prints. Why Ruby died is still a mystery; Kissinger wrote a letter to Sherman at the time saying she couldn't identify the cause.Sherman then sued Kissinger, and the Capitol Hill practice where she worked, for claims including breach of contract and negligent misrepresentation. A three-judge panel at the state appeals court issued no finding as to the vet's culpability. The 2008 decision reiterated that pet owners are not entitled to emotional-distress damages in negligence cases. However, in a footnote that's gotten Karp very excited, the court stated Sherman could get such damages if she could prove a higher level of malpractice, namely "willful" misconduct. (The case later went into arbitration and settled for an undisclosed amount.)Now, with the Hendrickson suit, Karp is attempting to lower the bar a little further. He's arguing that emotional damages should be available even in cases of "reckless" misconduct.After all, he argues, the vet was entrusted with "a sentient, animate being who occupies a status analogous to a child."In a declaration to the court, Ridgetop veterinarian John Paulson noted commonsensically that animals are "not family in the sense of a nuclear human family" and that "dogs are physiologically and genetically different."That elicited an angry personal attack from Karp, who wrote in his brief, "Perhaps [Paulson] sees himself as more of a car mechanic working on inanimate hunks of steel." He suggested Paulson "should revisit the reason he entered veterinary medicine.""Mr. Karp needs to grow up," responds Schedler, Karp's courtroom opponent in this case and a number of others, in an interview. "Pets are not people."No hearing on the case has yet been set.Charlie Powell saw his father—a veteran of three wars—cry exactly twice. "That was over the death of our two dogs. He didn't even cry when his mother died."And yet, Powell says, his father "wouldn't have spent $100" on veterinary care.Powell observes very different attitudes these days in his job as public information officer for Washington State University's College of Veterinary Medicine, which runs a $38 million teaching hospital. "I see people coming here every day to spend four or five digits on a cat," he says. He notes that his brother, a scientist, brought in a dog for acute renal failure and plunked down $11,000 for treatment "without batting an eye."WSU's hospital offers "advanced medical imaging as good as anything used for human care," Powell says. CT scans and MRIs are routine. So is cancer treatment. Harmon Rogers, the hospital's director, says the facility developed radiation protocols suitable not only for small furry animals but also potentially for young children.Rogers has been a veterinarian since 1974. For years, he says, veterinarians were taught to measure three vital parameters: temperature, pulse, and respiration. But now there is a fourth: pain.Concern that pets be healthy and comfortable has led to the use of other procedures that once would have seemed ludicrous in veterinary care: acupuncture, hydrotherapy, motion-sickness drugs for animals that get queasy riding in cars.With all these treatments available, Americans spent $24.5 billion on veterinary care in 2006, according to a study done by the AVMA, more than double what they had 10 years prior."All we're saying is it's got to be a two-way street," contends Chris Green, a New York lawyer, movie producer, and advocate for increased veterinary accountability. In private conversations and trade publications, he observes, veterinarians acknowledge that "they're raking in all this money because of the human/animal bond." So, he says, they shouldn't "turn around and deny it exists in the courtroom."Yet national and state veterinary associations continue to aggressively defend rules that limit damages against them. As a result of veterinary lobbying, recent state laws in Tennessee and Illinois that upped penalties for harming animals specifically exempted veterinarians, Green says.In 2008, Karp convinced Rep. Kelli Linville (D-Bellingham) to float a bill in Olympia that would have made veterinarians—and anyone else who killed or injured a pet—liable for the animal's "actual value" to the owner, a squishy concept that can take into account emotional attachment. The penalties were greater for outright animal cruelty.La Jeunesse, the state veterinary association president, responded with a letter to legislators. "The death of an animal companion can, for some people, be the most significant loss experienced in a lifetime," she allowed. However, she wrote, making veterinarians subject to expensive lawsuits "will result in a snowball effect of unwanted circumstances, ultimately resulting in fewer pets receiving care." The bill failed to make it out of the House Judiciary Committee.No doubt most veterinarians go into the field because of their love of animals. But sometimes you have to wonder. Such is the case with Peter Rule—if there's any truth to the current complaint that Karp has filed against him.Karp's client is the owner of a papillon that died after being spayed by Rule. Karp claims an infection resulting from the botched surgery caused the dog's bowel wall to rupture, spilling septic fluid into its abdomen and ultimately killing it. He's seeking to have Rule disciplined by the state Veterinary Board of Governors.That, however, is not the most startling part of Karp's 23-page complaint. He quotes from affidavits he took from five former employees of Rule, several of whom accuse the vet of mistreating animals, punching one dog in the face and choking another to the point of passing out.Reached by phone at his office in Ferndale (just north of Bellingham), Rule denied the allegations. The board has yet to take action in the case.While the allegations against Rule seem extreme, they are not unique. Green, in a 2006 article on veterinary malpractice in a journal published by Portland's Lewis & Clark Law School, cites the case of a Michigan doctor who, according to a press report, admitted punching an injured dog who was having trouble lying down for an X-ray. Green also refers to cases involving egregious errors: "a dog brought in for a grooming and clipping that ended up being castrated" and "a veterinarian who mistakenly euthanized a client's dog 'Charley' instead of another patient named 'Carly.'"Green is not claiming that mistreatment happens more often in veterinary medicine than in human. But he, Karp, and their allies argue that, unlike MDs, veterinarians face few sanctions that would serve as deterrents. Veterinarians' liability insurance—bought for as little as $200 or $300 a year—easily covers any potential awards. Consequently, Karp says, "they're never going to pay out of their own pocket."The diminished potential for courtroom penalties makes the role of state licensing boards all the more important, they argue. But they say such boards rarely mete out meaningful discipline."I have not seen a single veterinary license being revoked because of malpractice," says Jean-Pierre Ruiz, a Bellevue attorney who devotes part of his practice to animal law and writes a blog on the subject for Examiner.com.It does happen. Department of Health statistics show that over the past four years, three veterinarians gave up, or were ordered to give up, their licenses following board investigations. That's about the same rate, relative to the number of complaints filed, as for physicians.But the board appears to settle a greater share of veterinary cases with "informal dispositions," under which the vet in question doesn't have to admit any mistakes but does agree to take remedial classes or other "corrective action." Three-quarters of all actions taken by the veterinary board between July 2008 and July 2009 were informal dispositions, compared to just under half in MD cases.WSU's Rogers, a member of the six-person veterinary board, says informal dispositions quickly solve problems, many of which are just a result of miscommunication. He himself was the subject of a complaint to the board 25 years ago. A client had brought in a kitten with diarrhea late one evening. After Rogers took the cat's temperature, he pulled out his thermometer to reveal blood on it. It's common, he says, for cats with a gastric infection to have blood in the stool—something he says he should have told the cat's owner, who instead jumped to the conclusion that Rogers had injured the kitty.Others contend the board is just protecting its own.Either way, there's no means for the public to challenge the board's findings. "If you do not agree with the decision of this board, you are not entitled to an appeal," observes Nonna Newman, a contract bargaining specialist for the large government-workers' union, the SEIU. She has made the issue a personal crusade.Sitting in her Des Moines home, surrounded by pictures of a shaggy brown-and-white Pekinese named Trali, Newman recalls going everywhere with the dog, including regular stops at a nearby rose garden."Trali was such a flower lover," says Newman. She and her husband Ken had never wanted the bother of keeping up a garden, but after getting Trali they planted a magnolia tree, a camellia bush, and other blossoming plants that might delight their dog. Newman also recounts how Trali would lick her tears away when she was sad, and stick by her side when she was sick.She says she loved Trali exactly like a child (and unlike many obsessed pet owners, she has a point of reference: a 27-year-old son). So her anguish was intense when Trali became gravely ill in 2006.Then about 31/2 years old, Trali suddenly became paralyzed from a herniated disc, a condition that Newman learned is fairly common in short-legged dogs. Her veterinarian referred her to someone considered "a God when it comes to dog's spines." That man was Michael Harrington, then practicing at the Animal Emergency Clinic in Tacoma and skilled (according to his website) in both neurosurgery and acupuncture.Harrington used both skills on Trali, first performing an operation that repaired the dog's disc and then, in Newman's description, doing acupuncture to "wake up" the dog's nerves. Afterward, Trali learned to walk again, although it was a slow period of recovery in which the Newmans would massage Trali's legs and tail and exercise her back feet in the bathtub.Eight months later, "in a blink of an eye," Trali once again lost the use of her limbs, Newman recalls. After a snowy, sleepless January night, Newman brought Trali back to the Tacoma clinic.Here's where the accounts of Newman and Harrington sharply diverge. Newman says Harrington told her that MRI test results revealed that Trali's situation was hopeless. The dog had a whole spine full of calcified discs. Even if Trali went through surgery, Newman says she was told, the dog would have no life, left immobile in a cage or in front of the TV.Euthanasia was the only option, Harrington insisted, according to Newman. She says she begged the doctor to consider other treatments. Instead, she says, he told her "I would hope you love her enough to do the right thing." Weeping, she agreed to have Trali put down.Later, feeling that something wasn't right about what happened, she hired an expert to review Trali's medical records. That expert, a California veterinarian named Robert Richardson, opined in his report that Trali received "an inappropriate and invalid prognosis." Preventative surgery could have been done when Harrington originally saw Trali, and steps could have been taken after her relapse, Richardson said.Harrington, reached by phone, declined to comment. But he gives his version of events in a report sent to the board of governors after Newman filed a complaint."The assertion that I did not treat the dog properly the first time is wrong," Harrington writes. "The dog recovered well." As for the second time, Harrington asserts that he recommended surgery, not euthanasia. In fact, he says a "surgery suite" was being prepared for Trali when Newman stopped the process.He writes: "The decision to have the dog euthanized was made by Ms. Newman because, as she told me, she did not want to pay a second time and she did not want to risk even more expenses if a third episode were to occur.""If I was so concerned about cost, why would I spend $1,500 on an MRI?" Newman responds. All told, she reckons she spent $7,000 for both of Trali's visits to the Tacoma clinic.The expenses have only increased from there. After the board of governors declined to take action against Harrington, she decided to petition Thurston County Superior Court for a judge to review the board's decision. The court refused. Karp took the case to the appeals court, where a three-judge panel ruled in May that Newman had no legal "standing" for her claim. It's the veterinarians whose licenses are at stake in board investigations, the judges said. The decision meant that not only veterinarians but all licensed professionals overseen by state boards—including doctors, nurses, and psychologists, according to Karp—are insulated from patients seeking to question board decisions.Karp and the Newmans have appealed to the state Supreme Court, which has yet to say whether it will hear the case.Newman tried to achieve the same end last year by going directly to the legislature. Her state house representative, Dave Upthegrove (D-Des Moines), sponsored a bill requiring the veterinary board to explain its findings in writing, add more lay members to its ranks (currently there is only one among the six), and effectively allow for appeals. The state veterinary association objected, and the legislation died in committee.The Newmans have spent $87,000 on legal fees so far. But unlike Hendrickson, they have never sought damages on their own behalf."We are not after vengeance," Newman says by way of explanation. "We are after accountability."Karp, ultimately, is after something more—to do no less than rewrite the legal hierarchy of man and beast. He asks: "What is the basis for which we treat one being [an animal] as worth nothing and one being [a human] as worth everything?" nshapiro@seattleweekly.com

 
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