To Scan or Not to Scan: Conflicted Vets and Stolen Pets

by James Hardman, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

Modern technology throws a new bone to an old conundrum: what ownership rights do individuals have in their pets? The use of implanted microchips to electronically preserve records of pet ownership¹ transposes this into an ethical and legal dilemma facing veterinary professionals: how should the veterinary professional act if they discover that the person currently claiming ownership of the animal is not the registered owner and that the animal in question has been stolen? Informing the registered owner so they can retrieve the animal could leave the veterinary professional vulnerable to civil claims for loss of property, while staying silent could result in a rightful owner never learning what happened to their missing pet. If applied nationwide, the legally prudent solution—no longer scanning microchips on non-stray animals—could have a deleterious effect on the identification and retrieval of stolen pets.

Each microchip contains an identification number for the animal that matches against an entry in one of several proprietary databases;² these databases may link an animal’s ID number with a registered owner.³ Many veterinary professionals encounter issues of ownership of lost or stolen pets that are discovered as a result of scanning a pet’s microchip in the regular course of medical treatment.⁴ In a typical scenario, a veterinary professional may discover a mismatch between the identity of the registered owner and the person who brought the pet in for examination.⁵ At that point, vets are faced with a decision: Who is the rightful owner? Just such a circumstance arose at a local animal hospital in Cincinnati, Ohio.⁶ A woman brought in a dog for a standard medical treatment, and upon scanning the animal’s microchip, hospital staff discovered that the pet was registered to someone else; in conversation with the woman, it was discovered she had found the animal abandoned on the street and decided to care for it. The hospital subsequently obtained legal advice that recommended not checking an animal’s microchip unless the person bringing the animal in provides informed consent.

This gives rise to two questions. Under Ohio law, what liability would the veterinary professional have to the person who brought the animal in for treatment if, having realized the discrepancy between apparent and registered owner, the veterinarian caused the pet to be returned to the original owner? And, if liability broadly lies with the veterinary professional for intervening, what are the broader societal consequences of attempting to avoid such liability?

II. Background

A. Companion Animals as Personalty

First, what property rights do owners have in their companion animals? Dating back to the reign of William I of England (reigned 1066-1087), dogs and cats were considered “base” animals without “intrinsic value”—thus one could not be guilty of the crime of larceny for unlawfully taking one, although a civil action could still arise.⁷ As grand larceny was punishable by death, English jurist Lord Cooke apparently reasoned that it was not larceny to steal dogs, or other such animals, as “it was not fit that a person should die for a dog.”⁸ Similarly in Ohio, the courts found as late as 1875 that dogs were not “goods and chattel” under the statute and thus could not be the subject of larceny.⁹

The law has since moved on. From 1953, dogs are statutorily personal property;¹⁰ although there is no equivalent law for cats, cats are included along with dogs as specially-protected “companion animals” in another Ohio statute.¹¹ The courts effectively adopted this view on pets’ value even earlier; the state legislature revised the statute in Ohio describing property subject to larceny in the late nineteenth century, substituting “anything of value” for “goods and chattels,” and the courts subsequently held that a dog was a thing of value and therefore could be a subject of larceny.¹²

B. Title to Stolen, Lost or Abandoned Pets

Second, the law treats an original owner’s title to personal property, including pets, differently depending on whether the property was stolen, lost, or abandoned.

Under the general common-law rule, the original owner’s rights are not severed where goods are stolen and later sold, even if the subsequent owner is a good faith purchaser for value.¹³ In Ogden v. Ogden,¹⁴ the Ohio Supreme Court used the hypothetical of a man, A, who loaned his horse to another man, B, who took the opportunity to sell the horse to a third individual, C. The court held that A could recover from C because “[i]n this country no one can obtain title to stolen property . . . however innocent he may have been in the purchase; public policy forbids the acquisition of title through the thief.”¹⁵ The Ohio Court of Appeals reiterated this standard, explaining that “[b]ecause a thief has void title, anyone possessing superior rights to the property may recover possession from the thief or a subsequent purchaser.”¹⁶

At common law, the principle existed that personal property that was “casually lost” and apparently without an owner was not held to belong to anyone and thus could not be the subject of larceny.¹⁷ However, in modern Ohio jurisprudence, divergent approaches are taken to property that is abandoned and property that is lost. On the one hand, title to merely lost property remains with the owner of the property, including the right to recover the value of the property from a finder who subsequently disposes of it.¹⁸ The distinction in classification relies on whether, under the circumstances apparent to the finder, they had reasonable grounds to believe they knew the original owner or could find out who it was, in which case the finder could not appropriate the property for their own use.¹⁹ However, if the finder had no reason to suspect who the owner was under the circumstances, the finder does not have to “use diligence or to take pains in making a search for the owner.”²⁰ In the case of a lost pet, circumstances such as “lost” posters placed physically in the area or announcements on social media could constitute sufficient notice to the finder.²¹ Although there are no Ohio cases directly dealing with microchip database ownership records, in Niday v. Jenkins,²² the Ohio Court of Appeals found that an original owner held superior title over a finder to a lost pet even though the original owner had not registered their ownership as required under Ohio law.

On the other hand, abandoned personal property “becomes the property of the first person who reduces it to possession with the purpose of making it the person’s own” and the person who abandoned it is “divested of all title and ownership and cannot thereafter recover such property from anyone who reduces it to possession or hold such person liable for its conversion by taking it into their possession.”²³ Similarly, law enforcement could not charge such a person taking possession with larceny.²⁴ Nevertheless, proving abandonment requires showing both intent to abandon and acts or omissions implementing such intent,²⁵ triable to a jury²⁶ and “always determined by looking to all the circumstances of the case and by considering the acts and declarations of the one who resists the claim of forfeiture.”²⁷

C. Potential Claims by Subsequent Owners: Causes of Action and Theories of Recovery

Third, a subsequent owner with superior title who loses actual possession of their pet to the original owner as a result of the veterinary professional’s conduct has a slew of legal theories on which to bring a cause of action against the professional.²⁸

First, the new owner could bring a claim for conversion. In Ohio, conversion is defined as “any exercise or control wrongfully exerted over the personal property of another in denial of, or under a claim inconsistent with, his rights.”²⁹ Since dogs are personal property, a new owner could bring a civil claim against the veterinary professional for economic damages resulting from the loss of the animal, which the courts have determined should take into account “fair market value, age of the pet, pedigree, training, [and] breeding income,” among other quantifiable factors.³⁰ However, courts may not award noneconomic damages for the loss of a pet; the courts have found there is “no authority in Ohio that would allow recovery for loss of companionship of animals.”³¹

In the alternative, a new owner could bring a claim under breach of bailment contract. A bailment is formed when the owner transfers possession of the animal (as bailed property) from the owner (bailor) to the veterinarian (bailee) for medical care.³² One advantage of bringing a breach of bailment contract claim is that “when the bailed item is lost, destroyed, or compromised while in the bailee’s possession, the plaintiff raises a prima facie case, or presumption of negligence.”³³ Thus, if the veterinarian took possession of the animal to carry out the treatment, and then caused the animal to be returned to the original owner, this may have been an actionable breach of contract in addition to conversion.³⁴ In such a case, damages are typically determined by the item’s fair market value.³⁵

Finally, various plaintiffs have brought causes of action for Intentional or Negligent Infliction of Emotional Distress (“IIED” or “NIED”), also known as “outrage,” for the emotional distress caused by the loss of their companion animal.³⁶ Although the courts have sometimes found that the physical or mental disability arising out of the emotional distress caused by intentional or negligent injury to a companion animal is sufficient basis for asserting IIED or NIED, this generally requires some form of injury—or reasonable belief of an injury—to the animal in question.³⁷ Nevertheless, the court in Fredeen v. Stride held that recovery was appropriate against the defendant, a veterinarian, for mental anguish due to the conversion of the plaintiff’s dog, although not against the new, good faith owner.³⁸ In that case, the court held that the “aggravated conduct” on the part of the veterinarian—who lied to an owner about the euthanasia of their pet and actually gave the pet to someone else—was an essential element to establishing the emotional damage basis for IIED.³⁹

III. Discussion

A. Liability of the Veterinary Professional

Extending the lost, stolen, and abandoned property rules discussed in the previous Part to the scenario of a found pet, the subsequent owner would have a stronger claim against a veterinary professional if the pet were abandoned, but not stolen or lost.

If the pet were stolen, then title would remain in the original owner, even if the new owner was a good faith purchaser for value. Therefore, the subsequent owner would likely not be able to state a claim against the veterinary professional for causing the pet to be returned to the original owner. Similarly, if the pet were merely lost, then the original owner’s title might be preserved if the finder should reasonably have known or been able to discover the original owner’s identity; in the scenario at issue, the pet has a microchip linking the record of ownership to the animal, which inherently undermines the finder’s ability to claim they could not have found out who originally owned the animal. Finally, if the pet had been abandoned, then the original owner’s property rights to the companion animal are severed; they would no longer have a right to the animal. However, the subsequent owner would have the burden of proving that the original owner had abandoned the animal based on the facts and circumstances of the case.

B. Policy Issues

This issue reflects deep inadequacies in the law and guidance to veterinary professionals, demonstrating that legal reform is sorely needed. The consequences of this are most severe when dealing with stolen pets.

A veterinary professional who discovers the ownership inconsistency may feel an ethical responsibility to inform the original registered owner of the animal’s present circumstances—especially if doing so could justifiably serve to protect the animal’s welfare.⁴⁰ However, under current law, a veterinary professional who intervenes in an ownership dispute has no legal protection if they, in a well-meaning yet legally unsupported act, cause a subsequent bona fide owner to lose possession of a companion animal. Thus, the most rational approach for veterinary professionals is to avoid discovering the discrepancy in ownership in the first place, such as by implementing a policy to not scan microchips unless explicitly assented to by the person bringing the animals in for treatment.

However, such a policy defeats, at least in part, the purpose of the microchips in matching stolen animals with their owners. Although the exact number of pets stolen in the United States each year is unknown,⁴¹ various internet sources report that around two million dogs were stolen every year prior to the COVID-19 pandemic and the incidence of pet theft has increased since.⁴² An owner may hope that her stolen dog, sold for a high price to a new owner, would be identified when a vet scans its microchip and checks the ownership database. Sadly, the lack of legal guidance on this issue evidently means that veterinary professionals are discouraged from scanning microchips except where given permission by the putative owners.

What is to be done? Protections must be found for veterinarians who reasonably suspect that an animal is stolen,⁴³ perhaps through an independent reporting and investigation mechanism. Under such a framework, a veterinary professional who discovers the mismatch in owner records could, upon reasonable suspicion of theft, report such to an independent authority; this authority would then carry out an investigation into the circumstances behind the loss of the animal and subsequently refer the findings to law enforcement, if necessary. Indeed, the federal Animal Welfare Act,⁴⁴ which prohibits the sale or use of stolen animals in scientific research facilities, already promulgates a similar policy goal.

A less resource intensive alternative would be to create rules enforcing a duty of loyalty to the current client with exceptions for a reasonable suspicion of theft. This would reflect the legal duty to report animal abuse.⁴⁵ Such a duty would preclude veterinarians from contacting the original owner except under circumstances where a reasonable person might suspect the animal in question had been stolen. Veterinary professionals could rely on this rule against a claim for conversion or breach of contract by the subsequent owner in the event the veterinary professional’s reasonable suspicion proved to be unfounded. However, such a rule could also result in stolen animals that the subsequent owner knows or suspects are stolen to miss veterinary care due to the subsequent owner’s fear of losing possession of the pet.

IV. Conclusion

A veterinarian who causes an owner to lose custody of their pet because they contacted the owner of record in an animal’s microchip potentially stands liable to the subsequent owner for claims of conversion and breach of contract only if the original owner did not abandon the pet, the burden of which is on the subsequent owner to prove. It is, therefore, understandable why veterinary professionals in Ohio have received advice to not review microchip data in the absence of adequate guidance or protection from liability for doing what many in the veterinary profession would consider a moral course of action. Nevertheless, Ohio authorities should take action to fix this issue, ensuring that veterinarians can be part of the solution for returning stolen pets, protecting them from innocent mistakes in the course of their duties, as well as safeguarding the rights of those who take in and shelter abandoned animals.

Cover Photo by ACC District on Flickr and licensed under CC BY 2.0.

James Hardman

After graduating from the University of Cambridge with a degree in French and Russian, James Hardman worked for over six years as a consultant investigator for a boutique London investigations firm with a focus on international dispute resolution and cross-border asset tracing. He and his wife moved to Cincinnati in 2020 to be closer to her family and to embark on a new career in law. James is particularly interested in international commercial law and in his free time is an avid player of boardgames.

References

1
There are approximately 150,000,000 pet cats and dogs in the United States. The American Veterinary Medicine Association (“AVMA”) and American Animal Hospital Association (“AAHA”) encourage pet owners to have their pets microchipped and to keep the registration information up-to-date. The chips do not contain any other medical or ownership information. See 2022 American Veterinary Medical Association (AVMA) Pet Ownership And Demographics Sourcebook 3 (May 2022), https://ebusiness.avma.org/files/ProductDownloads/eco-pet-demographic-report-22-low-res.pdf; National Check the Chip Day, Am. Vet. Med. Ass’n, https://www.avma.org/events/national-check-chip-day (last visited Feb. 19, 2023).
2
Statistical information on the percentage of pets in the United States that have received microchips is sparse, but one Ohio State University researcher interviewed in 2009 estimated that only between 5-8% of animals in the United States had them. Ohio State Univ., Microchips Result in Higher Rate of Return of Shelter Animals to Owners, ScienceDaily (Oct. 14, 2009), http://www.sciencedaily.com/releases/2009/10/091013185154.htm. Anecdotal evidence from an Ohio-based veterinary professional indicates that the proportion of microchipped pets may now be considerably higher following years of campaigns encouraging owners to microchip their pets.
3
Microchipping FAQ, Am. Vet. Med. Ass’n, https://www.avma.org/resources-tools/pet-owners/petcare/microchips-reunite-pets-families/microchipping-faq (last visited Feb. 19, 2023); see also FAQs for AAHA Universal Pet Microchip Lookup Tool, Am. Animal Hosp. Ass’n, https://www.aaha.org/your-pet/pet-microchip-lookup/faqs/ (last visited Feb. 19, 2023).
4
Edie Lau, When Microchips Muddle Pet Ownership Status, VIN News (Dec. 13, 2012), https://news.vin.com/doc/?id=5632236.
5
Id.
6
See also Lau, supra note 4 (detailing several similar anecdotes of the issues encountered by veterinary professionals).
7
James Timothy Payne, Annotation, Cat as Subject of Larceny, 55 A.L.R.4th 1080 (1987) (quoting 4 Bl Com 236 (“As to those animals, which do not serve for food, and which therefore the law hold to have no intrinsic value, as dogs of all sorts, and other creatures kept for whim or pleasure, though a man may have base property therein, and maintain a civil action for loss of them, if they are not of such estimation, as that the crime of stealing them amounts to larceny.”)).
8
Id.
9
State v. Lymus, 26 Ohio St. 400, 20 Am. Rep. 772 (1875).
10
Ohio Rev. Code Ann. § 955.03 (West 1953) (“Dogs are Personal Property”).
11
Ohio Rev. Code Ann. § 959.131 (West 2023) (“‘Companion animal’ means any animal that is kept inside a residential dwelling and any dog or cat regardless of where it is kept”).
12
State v. Yates, 1887 WL 471, at *4 (Ohio Com. Pl. 1887) (“Since that decision our larceny act has been revised and re-enacted, and the words now used to describe property that may be stolen are, ‘anything of value.’ These words, unlike the words, goods and chattels have no ‘settled and well defined meaning at the common law.’”).
13
81 Ohio Jur. 3d Sales and Exchanges of Personal Property § 104.
14
4 Ohio St. 182, 195 (1854).
15
Id.
16
Pate v. Elliott, 61 Ohio App. 2d 144, 146, 400 N.E.2d 910, 912 (Ohio Ct. App. 1978). The court explained that the only limitation on this notion was if the original owner “purposely clothe[d] another with the appearance of ownership . . . equity would require that the owner be estopped from asserting title as against a subsequent bona fide purchaser.” Id.
17
Annotation, Larceny by Finder of Property, 36 A.L.R. 372 (1925) (quoting Ransom v. State, 22 Conn. 161 (1852)).
18
Id. § 13.
19
Id.
20
Id.
21
1 Ohio Jur. 3d Abandoned Property § 13 (analogizing to the example of a lost wallet, the losing of which is broadcast over a school public address system and reasonably likely to have been heard by the student finder).
22
136 N.E.2d 447 (Ohio Ct. App. 1955).
23
1 Ohio Jur. 3d Abandoned Property § 5.
24
Id.
25
Id. § 6.
26
Id. § 7.
27
Id. §10; see also Davis v. Suggs, 10 Ohio App. 3d 50, 52, 460 N.E.2d 665, 668 (1983) (“Abandonment requires affirmative proof of the intent to abandon coupled with acts or omissions implementing the intent.”).
28
This article limits its scope to the claim an owner of a pet could bring against a veterinary professional. For completeness, in an ownership dispute between two competing owners, an individual claiming superior title to a companion animal over another individual with actual possession of said animal could bring an action in replevin against the latter. See Niday v. Jenkins, 136 N.E.2d 447 (Ohio Ct. App. 1955); see also 19 Ohio Jur. 3d Conversion and Replevin § 60.
29
Bono v. McCutcheon, 824 N.E.2d 1013, 1018 (Ohio Ct. App. 2005).
30
Rego v. Madalinski, 63 N.E.3d 190, 192 (Ohio Ct. App. 2016).
31
Oberschlake v. Veterinary Assoc. Animal Hosp., 785 N.E.2d 811, 815 (Ohio Ct. App. 2003); see also Sokolovic v. Hamilton, 960 N.E.2d 510 (Ohio Ct. App. 2011) (holding that a family dog’s death allegedly resulting from veterinarian’s negligence did not merit an award of noneconomic damages since, as personal property, potential damages were limited to the fair market value of the dog before and immediately after the alleged negligence).
32
Jay M. Zitter, Annotation, Recovery of Damages for Emotional Distress Due to Treatment of Pets and Animals, 91 A.L.R.5th 545 (2001).
33
Id.
34
See Long v. Noah’s Lost Ark, Inc., 814 N.E.2d 555 (Ohio Ct. App. 2004) (holding that owner of a lion cub could bring a claim for conversion, breach of bailment contract, etc., against an animal shelter that refused to return the animal to him).
35
8 Ohio Jur. 3d Bailments § 23.
36
See, e.g., Burgess v. Taylor, 44 S.W.3d 806 (Ky. Ct. App. 2001); Fredeen v. Stride, 525 P.2d 166 (Ore. 1974); Oberschlake, 785 N.E.2d 811 (2003).
37
See Cheryl M. Bailey, Annotation, Veterinarian’s Liability for Malpractice, 71 A.L.R.4th 811 (1989).
38
Fredeen, 525 P.2d 166 (1974) (holding that mental suffering is a proper element of damages where evidence of genuine emotional damage is supplied by aggravated conduct on the part of the defendant).
39
Id.
40
Veterinary professionals have a legal and professional duty to “protect the personal privacy of clients . . . and not reveal confidences unless required to by law or unless it becomes necessary to protect the health and welfare of other individuals or animals.” For example, in Ohio, veterinary professionals have the legal obligation to report evidence of animal abuse. By contrast, there are no ethical rules in Ohio requiring veterinary professionals to report “found” animals, even if the veterinarian has a reasonable basis to believe that the animal was stolen. See Principles of Veterinary Medical Ethics of the AVMA, Am. Vet. Med. Ass’n [hereinafter Principles], https://www.avma.org/resources-tools/avma-policies/principles-veterinary-medical-ethics-avma (last visited Feb. 19, 2023) (“A veterinarian shall respect the rights of clients, colleagues, and other health professionals, and shall safeguard medical information within the confines of the law. . . . Veterinarians and their associates must protect the personal privacy of clients, and veterinarians must not reveal confidences unless required to by law or unless it becomes necessary to protect the health and welfare of other individuals or animals. . . . The information within veterinary medical records is confidential. It must not be released except as required or allowed by law, or by consent of the owner of the patient.”); Ohio Rev. Code Ann. § 959.07 (West 2021).
41
Companion Animal Theft, Animal League Def. Fund, https://aldf.org/article/companion-animal-theft/ (last visited Feb. 19, 2023).
42
See, e.g., Melissa Chan, Lady Gaga Got Her Dogs Back, But as Criminals Capitalize on the Demand for Pandemic Pups, Others Aren’t So Lucky, TIME (Mar. 12, 2021, 8:44 AM), https://time.com/5945294/dog-theft-covid-19-pandemic/. Ironically, the retriever of the stolen pets has since announced their intention to sue Lady Gaga for not paying her for returning the dogs. See Paige Skinner, The Woman Who Returned Lady Gaga’s Stolen Dogs Is Suing the Singer for Not Paying Her, Buzzfeed News (Feb. 24, 2023), https://www.buzzfeednews.com/article/paigeskinner/lady-gaga-lawsuit-stolen-dogs-reward.
43
This could potentially use a similar objective standard to the Terry standard applied to police traffic stops. See Terry v. Ohio, 392 U.S. 1 (1968).
44
7 U.S.C. §§ 2131-2159.
45
Ohio Rev. Code Ann. § 959.07 (West 2021).