Guardianship Revisited
Rhode Island Law Passes 10-Year Mark

By Gary Block, DVM, MS, DACVIM

October 11, 2011

Ten years ago the Rhode Island legislature amended its animal cruelty laws, becoming the first state with the term “guardian” in its laws pertaining to animals. As written, "guardian" is defined as “a person who possesses, has title to or an interest in, harbors or has control, custody or possession of an animal and who is responsible for an animal's safety and well-being.” I’ve been a veterinarian and practice owner in the state for over a decade, and when HB 6119 became law, I was President of the Rhode Island Veterinary Medical Association (RIVMA). At the time, RIVMA had no mechanism to monitor pending legislation; I learned of the bill’s passage when the California VMA (CVMA) called to ask my opinion of it! From this historical vantage point I believe I have a unique perspective to share with colleagues.

Innumerable stories have been told about the genesis of the guardian law. Although the California-based animal rights group, In Defense of Animals, was widely reputed to have spearheaded it, the actual impetus was more local. High schoolers studying ethics in a pet-assisted therapy program read an article about the guardianship concept and began referring to themselves as pet “guardians” rather than “owners.” Program instructors and students subsequently approached a state representative about developing guardian legislation, and the bill passed easily.

Another critical misconception about Rhode Island’s law is that the term “owner” was replaced with the term “guardian.” A careful reading of the statute reveals “Guardian shall mean a person(s) having the same rights and responsibilities of an owner, and both terms shall be used interchangeably” (emphasis added), indicating it was not an effort to legally redefine the relationship between animals and people.

Should those who have pets be referred to as "owners" or "guardians"—or are the terms interchangeable? The answer isn't so black and white.

The common legal definition of guardian is “a person who has been appointed by a judge to take care of a minor child ("ward") or incompetent adult personally and/or manage that person's affairs” (West's Encyclopedia of American Law, Copyright 2008). Nowhere does Rhode Island’s law indicate “guardian” is intended in this sense. In municipalities where guardian laws were enacted, it seems legislators were either unaware of—or ignored—the potential confusion associated with using “guardian” in animal legislation. An unclear definition could produce arguments for more expansive interpretation of guardianship to include animals. The appointment of animal law professor Rebecca Huss as the “guardian-special master” of pit bulls previously owned by Michael Vick supports this possibility.

Response to the guardian law’s passage was swift and critical. The American Veterinary Medical Association (AVMA), the American Kennel Club and other groups, condemned it. The Council of State Governments adopted a policy opposing both animal guardianship and non-economic damage awards when an animal is injured or killed. Many ominously predicted a wave of lawsuits would capitalize on the ambiguity when guardian terminology is applied to animals. The AVMA Executive Board adopted a position statement that “any change in terminology describing the relationship between animals and owners does not strengthen this relationship and may, in fact, diminish it. Such changes in terminology may decrease the ability of veterinarians to provide services and, ultimately, result in animal suffering.” A CVMA white paper claimed the law would “jeopardize the readily available healthcare delivery system for animals by unnecessary legal delays.” DVM Magazine, quoting unnamed experts, reported that “[veterinary liability] insurance premiums would skyrocket” if the legal status of animals changed.

Forecasts of an avalanche of lawsuits and civil actions proved inaccurate. Since guardian legislation passage, there have been zero lawsuits within Rhode Island citing guardianship to recover non-economic damages. A 2011 article in the Journal of the American Veterinary Medical Association (JAVMA) noted “none of the lawyers or veterinarians interviewed by JAVMA News knew of any cases in a pet guardian city or state where the ordinance was used in litigation against a veterinarian, pet owner, or animal service provider.” Nor have there been any cases of delayed access to veterinary care due to guardian statute invocation. Similarly, liability insurance premiums for small animal veterinarians remain a tiny portion of their business costs. Adjusted for inflation, veterinarians now pay less for malpractice insurance than in 2001. The AVMA and other industry organizations made such grave pronouncements about the impact of guardian laws on insurance costs that many veterinary professionals accepted these assertions as facts. However, their conclusions are not substantiated. A study by a California veterinary malpractice insurance provider found that if non-economic damages were capped at $25,000 per incident, annual premiums would rise by a modest $188 (Chris Green, Animal Law Review, 2004).

Language is powerful in defining relationships. I understand those who believe the term “owner” is antiquated and limited in reflecting changing perspectives on human-animal interactions. I am conflicted by the potential ramifications of guardianship issues and the over-arching concept of non-economic damages. Awarding such compensation to pet owners in malpractice cases may prove a boon to attorneys, but will it result in frivolous litigation, an increase in the practice of “defensive medicine,” and a significant rise in veterinary fees? Can we honestly argue animals are mere property when pet owners pay thousands of dollars treating their ill pets? Marketing the human-animal bond to encourage enhanced veterinary care and spending cannot be done without accepting the implications of acknowledging such a bond. Taking advantage of the bond when it is in our economic interest, but invoking the property position when we are negligent in the practice of medicine, seems disturbingly disingenuous. The public will not tolerate what many see as hypocrisy within the veterinary community around these issues.

But guardianship may not be the best legal means to recognize the unique relationships people have with their animals. The practical implications of using this term may result in too many legal and political obstacles and prevent more constructive discussion of how to balance competing interests. “Guardian” and “owner” may be legally incompatible terms. Others have proposed that animals inhabit a “legal grey zone,” somewhere between being property and possessing intrinsic value beyond strict utility. Attorney Carolyn Matlack championed the concept of “sentient property,” and lawyer David Favre, in the Duke Law Journal (2000), proposed the concept of “living property.” The New Jersey Veterinary Medical Association also proposed “sentient value” of pets to proactively address public concern about the profession’s majority view of animals as mere property.

The veterinary profession would be better served by conducting a more open and honest dialogue about how we can legally and ethically acknowledge the place of animals in society while fulfilling our responsibility to them as our patients.

The references cited below provide more information about non-economic damages as they relate to animal guardianship:

1. Determining the Value of Companion Animals in Wrongful Harm or Death Claims: A Survey of U.S. Decisions and an Argument for the Authorization to Recover for Loss of Companionship in Such Cases, by Marcella S. Roukas, Animal Legal & Historical Center (2007).
2. Non-economic Damages in Pet Litigation: The Serious Need to Preserve a Rational Rule, by Victor E. Schwartz and Emily J. Laird, 33 Pepp. L. Rev. 227 (2006).
3. Valuing Man's and Woman's Best Friend: The Moral and Legal Status of Companion Animals, by Rebecca Huss, 86 Marq. L. Rev. 47 (Fall, 2002).
4. "Man's Best Friend:" Property or Family Member? An Examination of the Legal Classification of Companion Animals and Its Impact on Damages Recoverable for Their Wrongful Death or Injury, by William C. Root, 47 Vill. L. Rev. 423 (2002).
5. The Future of Veterinary Malpractice Liability in the Care of Companion Animals, by Christopher Green, Animal Law Review at Lewis & Clark Law School (2004).
6. Barking Up the Wrong Tree: Companion Animals, Emotional Damages and the Judiciary’s Failure to Keep Pace; Sabrina DeFabritiis Associate Professor of Legal Writing, Suffolk University Law School (Feb 2011).

Dr. Gary Block

Dr. Gary Block currently serves on the HSVMA Board of Directors and is past-president of the Rhode Island Veterinary Medical Association and the Society for Veterinary Medical Ethics. He is co-owner of Ocean State Veterinary Specialists—a 27 doctor referral and emergency clinic in East Greenwich, Rhode Island. Dr. Block graduated from the New York State College of Veterinary Medicine at Cornell University in 1991.