Microchips Open Murky Legal Waters, But AVMA Still Urges The Practice

February 3, 2014

Editor’s note: This article originally appeared in the March 2014 issue of Dog Fancy magazine, a sister publication of Veterinary Practice News.

Most owners presume that if they have their pet tagged with microchip identification and she becomes lost, someone who finds the pet will scan the chip and notify the owner.

Often, fortunately, the scenario does play out this way. Shelters, animal-control organizations and veterinarians usually scan for microchips on recovered dogs.

"While microchipping is, indeed, a new and helpful way to reclaim a lost pet, there are some occasional murky legal waters stemming from certain circumstances and facts,” explains Heidi Meinzer, an animal law attorney in Alexandria, Va. For example, when microchips are placed in the dog upon the client’s request, rarely is any "proof” of ownership required.

"A lost, non-microchipped dog owned by family X may be found by family Y, who after diligently trying to find the owner decides to keep the dog and microchip her,” Meinzer explains. "If family X locates the dog, perhaps even showing up with registration papers, the door opens for a property dispute between the families.”In some cases, ownership may not be so clear-cut.

Generally, in common law the original owner of a dog has a superior ownership interest compared with the finder of a lost dog.

Certain facts, however, may alter those rights.

"At times, reasonable efforts on the part of the finder to track down the original owner, as well as the time spent caring for the dog, may be sufficient to overcome the prior owner’s original superior interest,” Meinzer says.

And microchipping a dog can affect a court’s perception of ownership.

"While microchips are strong evidence of ownership, especially in theft of companion animal cases, they’re not the only variables a court will consider in deciding cases of disputed ownership,” explains Scott Heiser of Portland, Ore., senior attorney and criminal justice program director with the Animal Legal Defense Fund.

"Proof of one’s bond to, and relationship with, an animal can be more compelling in certain contexts.”

So just because a dog is microchipped doesn’t mean the owner automatically will get it back if it is lost or even stolen, and later identified.

Courts, state legislatures and veterinary associations continue to explore the ethics and practicalities of contested dog ownership.

"Conflicts about dog ownership after Hurricane Katrina, for example, involved families that had left dogs behind (sometimes voluntarily and other times involuntarily) disputing with the families that had adopted the dogs,” Meinzer says.

Some the courts examined not only ownership claims, but the levels of care provided to the dogs in dispute.

"Similarly, in complicated dog custody disputes, some courts are beginning to take into account the dog’s well-being and her relationships with the contesting owners,” Meinzer says. "Dogs may legally be deemed property, but they’re viewed very differently in our society than the average piece of personal property.”

New Considerations

Microchipping identification adds new considerations. Is the finder of a lost dog obligated to have the dog scanned for a chip before taking ownership of the dog? What if the finder is well-intentioned but uneducated about microchipping?

"In Virginia there is a civil penalty for a finder who doesn’t take the necessary steps to find the rightful owner of property,” Meinzer explains. "The statute may not specifically address dogs or scanning for a chip, but scanning could be deemed a reasonable step.” 

Who polices the identification process?

Shelters typically scan for chips, but generally a veterinarian is not required to scan for a chip when a client brings in a dog.  A veterinarian’s primary obligation is to provide healthcare and treatment to a client’s dog.

"Veterinarians cannot be expected to investigate or resolve ownership disputes over an animal, but should ask for documentation of ownership in circumstances that raise suspicion that the presenting person may not actually be the lawful owner of the animal,” says Adrian Hochstadt, assistant director of state legislative and regulatory affairs for the American Veterinary Medical Association in Schaumburg, Ill.

In 2008, the AVMA adopted recommendations from a special task force to guide veterinarians in scanning patients for microchips prior to treatment.

"The revised guidelines also state that if a microchip implant is detected that the client isn’t aware of, the veterinarian should inform the client of this fact, provide the client with contact information for the microchip database company, and encourage the client to contact that company,” Hochstadt says.

So if someone steals or finds a microchipped dog, sells or gives it to another party, and that person’s vet discovers the hidden microchip, that doesn’t mean you automatically will get your dog back.

Veterinarians’ Role

Will a veterinarian be culpable for failure to scan for a microchip in the future?

"One of the few regulatory actions occurred not (in the United States) but in Great Britain, where a veterinarian was disciplined for not scanning for a microchip,” Meinzer says. "Interestingly, as well, owners in England will be required to microchip their dogs beginning in 2016.”

To further complicate the issues, state laws may regulate confidentiality between a veterinarian and his client. A client, after all, doesn’t always equate to the owner.

Is a veterinarian working for a client who brings in a beagle for treatment breaking client confidentiality when he scans the beagle, contacts the registering entity, and tracks down the person named on the chip when he discovers it is not the client?

"State laws and regulations aren’t clear yet on whether or not reporting a microchipped dog breaches veterinary-client confidentiality, or if a veterinarian has an affirmative obligation to contact former owners,” Hochstadt says.

And even if the registry is contacted, it still may fall to the original owner to negotiate or press legal rights to try to recover the dog.

As more people microchip their dogs, the property issues may be addressed and resolved by statute, case law, and regulatory agencies such as state veterinary boards.

"For now, the AVMA recommends that pet owners microchip their dogs,” Hochstadt adds. "A microchipped dog has a much better chance to be reunited with her owner.”

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