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.


Wife’s Liability for Husband’s Sex Crimes

August 30, 2008

Should a wife be liable to a child for sexual abuse suffered at the hands of the husband? The Washington Court of Appeals just handed down a fascinating case which discusses a spouse’s liability under Washington law for the tortious conduct of the other spouse. The rule is that the wife’s separate property is immune but community property is vulnerable if the wrongful conduct

“either (1) results or is intended to result in a benefit to the community or (2) is committed in the prosecution of the business of the community.”

In this case the fact that the boy did lawn work for the couple before the assaults was critical to finding community liability. The standard is awfully vague, which makes liability something that can often be argued.

But what if the community was in no way involved? The husband just went off on his own and sexually abused someone (or committed some other tort) far from home? The victim could go after the husband’s separate property but typically there is none. Most couples own community property without much separate property. Is the victim left empty handed? The rule is Washington is that, if there is no separate property, then the victim can get half the community property.

What if the wife files for divorce and enters into a property agreement that gives her the property? This will not work unless the division between the husband and wife is deemed fair.

This is certainly a messy area of law but I agree with the notion, particularly with respect to sexual predators, that there is some duty on the part of the wife, or non-offending spouse, to share some of the financial responsibility, rather than depriving the victim entirely.

This is a very tough call as both the non-offending spouse and the victim are innocent in a very important sense and both suffer mightily in the situation. All things being equal my scales tip a little more toward the victim.


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.


Tort Reform

January 19, 2008

The insurance industry and Chamber of Commerce have been resolute in the steady drum beat for tort reform. The “free-market think tank” Pacific Research Institute last March published a “report” assessing the annual cost of the American tort system at $865 billion per year. That’s a couple billion per day! (A number that wildly exceeds the sum of all tort judgments and is mostly attributable to “secondary effects.”) A month ago a Washington D.C. “nonprofit organization” the American Tort Reform Foundation, produced another “report” called Judicial Hellholes. This paper condemns judges and courts that have permitted high damage awards or are otherwise “unfriendly” to business interests. (Washington should be ashamed that it did not even register mention.)

These tort reform arguments are remarkably similar in that they do not make any serious effort to weigh competing interests or examine the nature of the the American people’s interest in inhibiting the action complained of in the lawsuits. It is presupposed that any harm done to business interests is a wrong to be avoided. This is propaganda not reasoning. This is one of those areas where the proponents take such an extreme position that discussion and dialogue cannot be pursued.

PRI’s “research” is a good example of how silly things have gotten. This report takes into account the amount of business lost as a result of lawsuits without considering what sort of business was lost, how the curbed business activities might have harmed society or how the absense of the business practices might have benefited people in general. The tobacco industry of course has lost a lot of money because of lawsuits but not everyone would call that wrong. This drop in profit by tobacco companies is offset by reduced health care costs and longer life spans, both of which are generally viewed favorably. Tort lawsuits have have resulted in a marked, measurable improvement in the environment, something that is favored in most circles. The tort of outrage has been used in Washington to abate racial slurs at work, a laudatory achievement in the eyes of many. Lawsuits substantially increased the safety of automobiles and reduced traffic deaths. Lawsuits are the means by which renegade corporations and corporate officers have been made responsible for criminal and fraudulent activity. They have been the means of recouping losses by stockholders and pension plan members.  There are countless other examples.

I hope some day these issues will be resolved by sane discussion of policy issues in which business interests will be seriously weighed against the interests of society.