Medical Malpractice Does not Apply to Vets in Washington

September 29, 2008

The case Sherman v. Kissinger was just published by the Court of Appeals today.  It represents a fairly good overview of a pet owner’s rights against a vet in Washington.  This case involved a dog which died after being left at a clinic for a urine sample.  A much more intrusive method of collecting the sample was taken than the one described to the pet owner, a method that led promptly to the dog’s death.

Suit was brought under several theories, including the medical malpractice statute, chapter 7.70 RCW, claiming lack of consent to the procedure.  The Court reversed the trial judge and held that the medical malpractice  statute could not be invoked against a vet.

The owners must treat a pet under Washington law like they would a television set that was taken in for repair.  Under the law a pet is just like any other personal property.  The informed consent statute therefore cannot apply to the treatment of pets.  (Claims that apply to appliance repair such as misrepresentation and negligence can apply to claims involving a pet taken to a vet.)

The reason that this sort of issue does not come before the Court of Appeals very ofter is that damages are only narrowly allowed.  The general rule is that the owner is entitled to the market vlaue of the dead pet.

Emotional distress and similar damages cannot typically be obtained for the loss of a pet.  There are no damages for loss of companionship with a pet.  Only if the cause of death was malicious injury can emotion distress damages be obtained.  This of course would not be available in a typical claim against a vet.

There is also something called “intrinsic value” of a pet that can be a measure of damages.  The idea here is to award the value of the pet to the owner, as opposed to the market value.  This is a very poorly developed concept in Washington and one of at least uncertain utility to an aggrieved pet owner.

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FISA: After Retroactive Immunity

August 25, 2008

I heard a lot of talk about how the FISA bill would not absolutely block court cases for unconstitutional wiretaps. That of course was largely untrue and most of the pending cases will be dismissed because of the retroactive immunity granted by Congress. The Electronic Frontier Foundation intends to expand its lawsuit instead of dismissing it. It will now include the government as a defendant, a risky tactic, as sovereign immunity defenses have served in previous cases for the government to avoid responsibility.  Wired reports that the EFF may have documentation sufficient to get around the tactics the government has used to avoid disclosing what it did.  Once again our ability to find out what our government has been doing will depend on the integrity of the people involved in the clandestine activity.  If enough information is brought forward we yet be able learn through the courts what has been done to us.


Vacation Fire Warning.

June 6, 2008

It is a very soggy June on westerm Washington, but a word of warning about fires this summer. Just as landslides get a lot of attention in this region, summer fires get a lot of attention in Eastern Washington. We read about forest fires over here but there are also many fires in non-forested areas, called wildland fires. During the heat of the summer a large portion of the State turns into a virtual tinder box and many people have suffered the consequences and not just property owners.

A person causing a fire is liable for treble damages to people suffering losses from the fire. One fire can create a large number of lawsuits. It need only proven that more probably than not you caused the fire. If there is a reasonably good argument that you caused the fire there can be devastating personal consequences.

The state will usually conduct an investigation of larger fires and issue a report which will be reviewed by the county prosecutor, among others. For reasons that are unclear to me people being investigated do not seem to have the full protection that the constitution affords criminal suspects. These investigations and interviews can be aggressive and intimidating.

The county prosecutor then can sue for the cost of fighting the fire and bring criminal charges. Last summer a hapless fellow made the ill-advised decision to light a smoke bomb in a treeless area outside of town. It ignited dead grass leading to a wildfire that resulted in a fine of well over one million dollars and a jail sentence.

The next wave of trouble comes from the federal government which can sue you any time within six years after the fire. The government usually seeks the cost of restoring federal land to its condition before the fire. The cost of replanting is staggering, even in so called “scrub” areas.

People find themselves in this situation when they are accused of leaving coals in a camp fire, or sometimes having a fire when there is a fire warning of which they were unaware. People are accused of starting fires a variety of different ways, such as having discharged guns, driving vehicles that created a spark, permitting an ember from a fire to travel hundreds of feet to a dry area. It would not be a bad idea to take a cell phone picture showing that your fire was entirely out before you leave a campsite.

Be careful. There are literally dozens of these cases every year. The federal government has become very aggressive, as have some counties. It is also prudent to consult a lawyer before being interviewed by a fire investigator, particularly one who just shows up at your door.


Illegal Immigrants’ Rights in Court

February 28, 2008

How do you feel about the question of whether an illegal immigrant should have the right to sue? Suits after all cost the county a lot of money. Not only that but the suit would presumably involve seeking an award against a lawful citizen, who would have to bear the expense of defense. We have been informed that the state budget for the courts is already critically low and this would create a further burden on the system. Thankfully, the answer to this question is “yes, they do have this right.” In this country there is not a class of residents who can be harmed or abused by others with impunity. To deny a class of people access to the courts is to render members of that class something akin to slaves.

Washington among all the states is very conservative in jury awards. The amount of damages juries parcel out is lower here than many other jurisdictions. Many states have punitive damages for egregious behavior but there is no such thing is Washington. (There is a limited right under the Consumer Protection Act (triple the amount of actual damages up to $10,000) and finally insurance companies that act in bad faith can now be penalized, but nothing is available in the usual lawsuit.) You combine low jury awards with the absence of punitive damages and you have to put Washington on the other end of the spectrum from say California (the land of milk and honey for plaintiffs).

There is another factor at play here. After 9/11 juries, at least in King County, shifted strongly toward the defense in lawsuits. They more frequently found against plaintiffs and tended to award lower amounts. Geography and current events play a large role in jury results.

Right now national security and immigration policy are hot topics and the two overlap. Mention of a party’s status as an illegal immigrant is potentially incendiary in the minds of a jury. With many juries this would create a strong bias against the person.

So the legal issue of the day is whether a person’s immigration status should be admitted in evidence. This is mainly resolved by determining whether it is relevant and relevance is determined by weighing probative value against prejudicial effect. A person’s immigration status is not a necessary element of any normal defense. (You can’t get off by saying “Sure I ran over the guy but he didn’t have his papers.”) All things being equal then a defendant does not have a right to inform the jury that the plaintiff is an illegal immigrant.

But it gets into evidence in other ways. An illegal immigrant in court must be careful about what he asks for. Monday the Washington Court of Appeals, Division I, held in Salas v. Hi-Tech Erectors, that if the plaintiff asks for lost future wages, the defendant can explain that he is an illegal immigrant, even though the admission of this evidence reduces his chance to win anything at all. This is an issue that various states courts are dealing with and one the Washington courts are likely to need to refine.

This decision affects the lives of similarly situated people. The case involved the construction industry which employs a disproportionately large portion of the illegal alien community in part because many will work for less than scale, many will take cash under the table and Mexican illegals are famous in the industry for working in inhospitable conditions and working extremely hard; they are highly valued workers.

Mr. Salas was working under illegally dangerous conditions (the construction company was cited) and was seriously injured. Serious injury to most illegal aliens means they will not be able to earn a living, either here or anywhere else. If they can no longer work and cannot recover for this lost income, courts do not offer a great deal of help to them.

This creates potential for abuse by employers. Many employers are already giving these people less money than they would have to pay for someone else’s work and many are already asking them to work in unsafe conditions. An employer’s knowledge that as a practical matter his employees cannot recover lost wages in the event of serious injury may serve as a disincentive to improve those conditions.


Statute of Repose: A Vehicle for Fraud

January 19, 2008

Washington’s construction statute of repose gives immunity to responsible people for damages that do not accrue until 6 years after the project — whether a bridge, a highrise, earthquake retrofitting or anything other than a condominium, which is 4 years — is put into the stream of commerce. This puts the burden of catastrophes on the victims.

Statutes of repose have been attacked constitutionally in a number of states. The result has usually been that the state legislature — at the behest of the building and insurance lobbies — passes a new law meeting, or appearing to meet, the unconstitutional aspects of the overturned law. Over the last several years the use of the statute of repose to avoid liability has increased. Increasingly we are hearing outcries about the injustice of its application.

In Minnesota a bridge failed killing many people. The local government had paid for a one hundred year bridge but when it failed after fewer than 20 years because of a design defect, the responsible people were render immune from suit by that state’s 10 year statute of repose. Only this summer — after the disaster — did legal professionals express outrage at the injustice of being unable to enforce warranties and representations that were a material part of the purchase price of the bridge.

In New Jersey the Supreme Court is considering a case in which a condominium developer made express representations to consumers knowing that they would rely on them. When these representation turned out to be false, the developer hid behind the statute of repose.

It is terribly hard to find a reasonable justification for Washington’s 6 year statute of repose, particularly when a new building is usually given a useful life of around forty years. Projections, pricing and even tax depreciation are based on the useful life of the building, bridge or other improvement. Despite all this we give immunity to everyone in the construction industry after 4 or 6 years.

The excuse — and it is a transparent excuse — for the law is that it would be too hard to determine the cause of a catastrophe after 4 years in the case of a condomium and 6 years with all other construction. The 4 year condominium law was passed however only because the responsible parties could be identified with certainty and there is absolutely no engineering difficulty determining causation that occurs after 6 years. Furthermore, the burden is on the plaintiff to prove causation so if it can’t be proven the suit fails. It is said sometimes that there might be intervening causes but this too is something that the system is supposed to address anyway before a judgment can be entered.


Prosecutions and the Cost of Firefighting

January 18, 2008

The high cost of firefighting is driving the prosecution of people who accidentally cause fires, resulting in jail time and heart stopping fines. But that’s not all. Upon conviction the culprit is then typically beset with civil lawsuits by property owners, who can use the conviction as evidence in their suits. FEMA set the cost of the highly publicized wildland fires in California at $126 million. A 22 year old Wenatchee man was just convicted of starting a wildland fire by lighting a smoke bomb, not a roman candle or string of firecrackers, a single smoke bomb. He got 30 days and will shortly be ordered to make retribution for the firefighting costs, which were said to be just under $2 million.