Who Killed Tootsie?
And should her bereaved owner get paid for emotional distress? Veterinarians and the pet industry sure hope the answer to the question is ‘no’

The earliest known depictions of the breed of dog known today as the Maltese date back to some 500 years before Christ. These dogs’ characteristics include a miniature size, rounded skulls, dome-shaped noses, striking black eyes and silky white coats. They are popular, especially among women, for their cuddly, playful dispositions.

Tootsie was a pedigree Maltese. Given that she stood less than 10 inches tall and weighed 3.5 pounds, you might not expect her to command respect. But Tootsie was born from the union of show-dog champions and carried herself accordingly. Those who knew her say she was intelligent, quirky, fearless, well-behaved and affectionate.

Would compensating Tootsie's owner for loss of companionship result in an animal-world Armageddon, as the pet industry claims?
Courtesy Gail McMahon
Would compensating Tootsie's owner for loss of companionship result in an animal-world Armageddon, as the pet industry claims?
Dr. Craig (pictured) says she gave Tootsie excellent care
Courtesy Dr. Diane Craig
Dr. Craig (pictured) says she gave Tootsie excellent care

But Tootsie had health problems: She’d undergone heart surgery as a puppy. Beginning in about 2001, she’d developed laryngeal paralysis, a problem that increasingly worried her owner.

Gail M. McMahon, of Aliso Viejo, spent untold thousands of dollars visiting veterinary clinics in hopes of curing Tootsie’s breathing problem. For years, nothing worked. Then, in late 2004, she learned of Dr. Diane R. Craig. During a consultation, McMahon told the Tustin-based veterinarian of her unique bond with Tootsie. Indeed, she told the vet that Tootsie was the most special dog she’d ever known and of her fear of losing her.

“What I recall is [McMahon] complained that her dog would be happy, happy, happy, jumping around, and then suddenly collapse,” Craig said in an interview. “This happened over and over, and she’d be rushed to an animal hospital.”

The vet recommended corrective throat surgery—tying back one of the dog’s two laryngeal folds. For the next six months, McMahon considered the option. The operation had risks, namely a 20 percent chance of Tootsie catching aspiration pneumonia. After gaining assurances of Craig’s time-tested surgical skills and promises that her beloved, fragile Tootsie would receive high-quality pre- and post-operation care, McMahon took her 6-year-old pet to Craig’s animal hospital on the morning of June 14, 2005.

Just after noon, a heavily sedated Tootsie emerged from the successful two-hour surgery. She was placed in a cage in the back of the hospital to recover. Before the end of the day, Craig called McMahon and said there had been minor post-op complications, but not to worry; the dog would be home in a few days.

But at 12:30 the following morning, a nurse saw fluid—including blood—oozing from the dog’s nose and mouth.

Within hours, Tootsie was dead.

A suspicious McMahon ordered an autopsy. Eventually, she took claims of negligence and a cover-up to Orange County Superior Court. In her view, Tootsie’s killer was the person charged with her safety: Craig.

McMahon’s battle to prove her theory has touched off a flurry of legal briefs between animal-rights groups on one side and veterinary and pet-industry groups on the other, all over a seemingly simple question: If someone kills your beloved pet, can you put a reasonable price tag on your own pain and suffering?

*     *     *

While Tootsie’s death was under legal review in May, a story appeared in The Orange County Register bearing the headline “Tustin Vet Aids Dog’s Recovery From Gunshot.” Craig, the heroine of the article, had operated on and saved Noah, a dog that had been found starving and shot in the face in Riverside County. The Register article—which failed to mention Craig’s role in the ongoing legal battle that had the attention of veterinarians and animal-rights activists nationwide—supplied an Internet link to Craig’s business, Veterinary Surgical Specialists Inc.

Craig’s lawyer, George M. Wallace, said questions about his client’s character are answered on her veterinary website. There, you’ll find Noah’s story is one of the many Craig can tell. She displays pictures of various content-looking dogs she has saved over the years at her state-of-the-art facility, located across Edinger Avenue from the old Marine Corps Air Station hangars.

Craig’s website also demonstrates that she is an animal lover in her personal life. Three cats and a Labrador retriever live with her, her husband (equine surgeon Dr. Richard Pankowski) and their three children. While growing up in San Francisco and the San Fernando Valley, she owned several show dogs and racehorses. She chose a veterinary career after completing degrees at the University of California at Davis and an internship and surgical residency at Cornell University in New York. Craig opened a private veterinary practice in 1988. In 2007, she served as president of the Southern California Veterinary Medical Association.

A brochure titled “When Your Pet Needs Specialized Surgical Care,” tells Craig’s prospective clients, “We care as much about the welfare of your pet as you do.”

Such advertising translated to reality for Tootsie, according to Craig. She said in an interview that the dog received “excellent” care.

“The last time I saw Tootsie after surgery, she was wagging her tail,” the vet said. “She was cheerful, so I was as surprised as anybody to learn that she died.”

*     *      *

In June 2005, McMahon was an Orange County lawyer whose hobby for more than two decades had been breeding and showing Maltese dogs. She’d been undeniably good at it, winning numerous contests. She has described her relationship with Tootsie with a single word: “love.” In anticipation of the dog’s arrival home from surgery, McMahon had placed dog treats in the house. But after midnight, she received the death notification from the animal hospital.

The news stunned McMahon, who’d been told Tootsie would be home in a matter of hours. She solemnly gathered up the treats, and then sat on her living-room couch. She recalled being “unable to cry or talk, staring into the darkness until the sun came up.” The pain of losing Tootsie kept her in bed for days.

Shock evolved into anger. McMahon says Craig had called her after Tootsie’s operation and said there’d been a setback, but not a major one: Within hours of surgery, the dog caught pneumonia.

“Dr. Craig made light of [Tootsie’s post-op condition] and told [me] it was not serious,” McMahon alleged later in a civil complaint.

Worse, according to McMahon, Tootsie was neglected. While other animals in serious condition were placed in an intensive-care area where nurses could constantly monitor them, she says, Craig put her dog in a cage in the back of the hospital. Tootsie was not given an IV drip for fluids or an oxygen tent despite her condition, the complaint alleges.

Said McMahon, “Simply put, Tootsie had zero medical attention on the night of her death.”

Still worse, according to McMahon, the veterinarian “lied” to her, claiming she’d given Tootsie only water after throat surgery, that the dog had never been left alone and had received the “best” care possible. McMahon obtained the animal hospital’s notes for the dog and says she discovered the heavily sedated animal had been given water laced with baby food hours after the operation.

“That is verboten because of the known risks of it getting into the lungs and causing pneumonia, especially where one of the folds in the throat has been tied back, leaving a direct pathway for the water or food to reach the lungs if the dog does not swallow correctly,” said McMahon.

She was incredulous that the vet attempted to mask her “malpractice” by failing to note in Tootsie’s medical records that the dog had been provided water, food or a combination of both.

According to the autopsy, food was found in the dog’s lungs, McMahon claims. Tootsie died painfully. She choked to death.

“What [Craig] did was so reckless you would think she had a death wish for the poor dog,” McMahon observed later in legal briefs.

After the autopsy, Craig “altered the nursing notes” to show that Tootsie was indeed given both food and water, McMahon charged. “It was a cover-up.”

Craig—who described McMahon as unneccessarily confrontational from the outset—denies the allegations. “Cover-up? I don’t know what she’s talking about,” the vet said. “She doesn’t understand what care was supposed to be given. I gave Tootsie fluids and tried to give her food, but she didn’t want it. Why would I need to cover that up?”

McMahon claims she was stung by another insult. The day after Tootsie’s death, Craig billed her Visa credit card for $609.30, the final portion of the surgery bill. According to court records, Craig attributed the fees to Tootsie’s “care.”

Believing that the vet’s conduct was reckless, fraudulent and malicious, McMahon filed her lawsuit in February 2006, seeking $7,000 for out-of-pocket expenses and $100,000 for intentional infliction of emotional distress. In her complaint, McMahon said, “Dr. Craig abused her position of power as a doctor.”

Wallace acknowledged in an interview that McMahon presents her case “strongly and vigorously.”

“But she is factually incorrect,” said Wallace, who disputes McMahon’s interpretation of the autopsy findings, the lack-of-adequate care claim and the existence of a cover-up. “I can confidently state that nothing at all was done wrong by Dr. Craig or her staff. Tootsie succumbed to a known risk of this type of operation. Based on what I know, I think her own saliva got into her lungs. She developed aspiration pneumonia and died. I know Ms. McMahon wants to see it differently, but that’s the truth. There were no errors. There was no negligence.”

*     *     *

Lawsuits against veterinarians aren’t uncommon, but McMahon’s suit sent a ripple of panic through the multibillion-dollar pet industry. Lawyers representing veterinarians’ associations, animal hospitals, and corporations selling pet food and products went on red alert. No fewer than eight industry organizations have provided legal assistance to Craig.

But the industry’s interests were larger than just defending a single veterinarian with a dead patient. They don’t want wronged pet owners to collect damages for emotional distress caused by the loss of their animal companions. They fear a repeat of, for example, a 1981 Hawaii case in which a dog died after a pet hospital locked it in an unventilated van on a hot day; the court held that the owner had suffered emotional distress based on negligence. The state’s supreme court said that the pet hospital should have known that its actions would suffocate the dog. It took a quarter of a century for corporate interests to get the Hawaii legislature to ban future recovery of such damages in similar cases.

In a 1978 Florida case, a pet owner was allowed to sue for emotional distress after a pet hospital left her dog attached to a heating pad for more than 24 hours. The dog roasted to death. The court found the vet’s actions amounted “to great indifference to the property of the plaintiffs.”

In the McMahon case, the pet industry took an aggressive, multipronged approach. It argued that emotional-distress damages were banned because Tootsie was nothing more than personal property—like a tractor, dining-room table or rare books—and California bans such awards based on the loss of property. Plus, McMahon didn’t personally witness her dog dying; if she did suffer distress, it wasn’t “severe” enough to warrant damages; she wasn’t humanly related to the pet; she didn’t prove Tootsie was “unique”; Craig never expressly guaranteed the dog would receive excellent care—declarations of excellent services on her veterinary practice’s website were generic and unenforceable; and the vets’ actions, even if in error, weren’t “reckless” enough to amount to gross negligence.

“There must be something more, something beyond [McMahon’s] subjective affection for or devotion to an animal,” wrote Victor E. Schwartz and Philip S. Goldberg, Washington, D.C., attorneys representing groups such as the California Veterinary Medical Association and the American Pet Products Association. “There must be the equivalent of a direct promise on [Craig’s] part not only to render professional services in the care of [McMahon’s] property in a non-negligent fashion, but also to take precautions against [McMahon] experiencing a negative emotional reaction if [Craig’s] negligence results in injury or loss of that property.”

In line with such thinking, pet-industry officials applauded a 1994 New York state decision. The court there banned a family from collecting emotional-distress damages after their golden retriever died while locked in a non-temperature-controlled baggage compartment of an American Airlines jet stuck on a runway for more than an hour in 115-degree heat. In that decision, the court ruled that because the family had not physically witnessed the dog suffocating, their distress was limited and thus not worthy of compensation.

There’s also a practical reason for the pet industry to dislike emotional-distress claims. Using the current animals-are-property definition helps limit the potential veterinary costs when pet patients die by negligence. In general, vets only have to compensate the pet owner for the market value of the animal. That price is rarely more than a few thousand dollars.

But McMahon’s view on damages has won supporters, too. Officials at the Animal Legal Defense Fund argue that treating pets solely as property is misguided and antiquated.

“Courts across the country are increasingly finding that market value is not the appropriate measure of damages in cases involving the loss of a companion animal,” attorney Bruce A. Wagman, on behalf of the San Francisco-based organization, wrote in documents filed in this case. “These courts recognize that longtime animal companions, like Tootsie, are a special kind of property, in that they cannot be readily replaced in the marketplace. Indeed, Tootsie cannot be truly replaced at all. . . . [McMahon] should be compensated for her loss.”

Pet-industry lobbyists argue that such talk is part of a nefarious national campaign to require courts to consider emotional-distress claims. In documents filed in Tootsie’s case, attorneys Schwartz and Goldberg alleged that animal-rights activists are plotting ways to recast animals, especially pets, as more than personal property. They believe their opposition’s ultimate goal is to legally equate pets with human children, an assertion that has won repeated outrage on the Fox News Channel and in Wall Street Journal editorials. The pet-industry lawyers wondered in writing if a California court would be swayed by what they called “pro-animal” sentiments.

*     *     *

McMahon, who relocated to San Francisco after Tootsie’s death, wasn’t thinking about conspiracy theories or pet-industry profit margins. She wanted Craig held responsible for her “outrageous” conduct. Her dog—the last female in a line of pedigree Maltese, had been “killed,” she concluded. To help prove her point, she hired a veterinarian who was, according to court records, prepared to testify that “Tootsie McMahon more probably than not died as a result of the treatment, care and/or lack thereof.”

But McMahon lost without a chance to present her case to a jury in Orange County Superior Court. Last year, Judge David T. McEachen agreed with Wallace, Craig’s lawyer, who had argued that McMahon wasn’t legally entitled to seek damages for either the intentional infliction of emotional distress or the loss of companionship. The judge based his decision on the observation that dogs are personal property.

To expedite a higher-court review of McEachen’s decision, both parties agreed to a stipulated judgment that favored Craig. In April 2008, Tootsie’s case landed at the Santa Ana-based state Court of Appeal. Schwartz and Goldberg filed an amici curiae brief alleging that exposing Craig to the possibility of paying emotional-distress damages for Tootsie’s death would lead to the deaths of tens of thousands—if not millions—of pets across the nation.

Indeed, according to Schwartz and Goldberg, a McMahon victory would result in a rapid, slippery slope of dire, unintended consequences, an animal-world Armageddon of sorts: pet-insurance rates would dramatically rise; vets would stop offering free spaying and neutering; dog-walking and boarding fees would rise, or the services would become unavailable; friends of pet owners wouldn’t pet-sit for fear of being sued; pet owners would avoid seeking preventive care from vets, meaning more ill and dead pets; more pets would be abandoned; fewer people would buy pets; public health would suffer because of the massive number of abandoned, ill pets; pet-litigation cases would flood courts; auto-insurance rates would “rise across the board” because of the number of abandoned animals running in the streets; police would be afraid to kill animals when appropriate for fear of lawsuits; the cost of human food would rise because farmers wouldn’t protect their livestock from roaming ex-pets for fear of the legal consequences.

The appellate court, dominated by conservative, Republican-appointed justices, probably didn’t need such doomsday scenarios to prompt them to find in Craig’s favor. Even accepting McMahon’s assertions of veterinary negligence as true for the sake of discussion, a three-justice panel was unsympathetic. “[Craig’s] care of Tootsie did not directly impact McMahon’s health,” wrote Justice Richard M. Aronson, with concurrences from justices Kathleen O’Leary and Richard D. Fybel. “Although a veterinarian is hired by the owner of a pet, the veterinarian’s medical care is directed only to the pet. Thus, a veterinarian’s malpractice does not directly harm the owner in a manner creating liability for emotional distress.”

Aronson and his colleagues also ruled that Craig had no duty to try to avoid causing McMahon emotional distress and noted that a bystander would have a better stress claim having witnessed the killing than McMahon because she didn’t observe her pet’s demise with her own eyes. They fretted that “expansion” of liability in this area of the law would strain an already-overburdened court system.

“Is every family member residing with a pet a human companion and potential plaintiff?” Aronson asked in his decision. “Moreover, what pets would qualify as companion animals? Few would dispute the longstanding bond between humans and dogs, but limiting emotional-distress damages to dog owner would affront those who love cats.”

The justices slapped McMahon a second time, saying that court resources should be reserved for the resolution of “serious tort claims.”

On the final page of the 19-page opinion, the court softened slightly, claiming they appreciated the “love and loyalty” a pet can inspire. But they still observed that California law “does not allow parents to recover for the loss of companionship of their children, [so] we are constrained not to allow a pet owner to recover for loss of companionship of a pet.”

*     *     *

Four years after Tootsie’s death, McMahon continues to mourn her loss. Her nerves remain frayed. She wrote in one document that she still feels “immense grief, guilt and rage.”

Despite the setbacks, McMahon refuses to concede in the courthouse. From her perspective, she thinks the precedent of Tootsie’s case is that “veterinarians have carte blanche to do whatever they wish with the pets under their care.”

In mid-August, McMahon filed a petition in Orange County seeking a rehearing of the Court of Appeal decision. If the appellate justices had been curt with her, she returned the sentiment. She says their opinion “misstates the facts,” “misapplies the law” and is, in at least one spot, “nonsensical.”

For their part, Wallace and Craig say they remain sympathetic to McMahon’s loss of Tootsie. “What happened is sad and unfortunate,” said Wallace. “We acknowledge her pain. Tootsie died a very sudden and unexpected death. But Dr. Craig—who is a reputable, established veterinarian—followed all acceptable standards of professional conduct.”

Said Craig, “I really don’t want people to think that I’m a monster because of this lawsuit. I did nothing to contribute to that dog’s death. Part of me wishes there had been a trial so that my reputation would have been restored by all of the facts that would have come out.”

On Aug. 31, the appellate court refused to reopen the matter.

McMahon says she will now take Tootsie’s case to the California Supreme Court.

rscottmoxley@ocweekly.com

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