Originally posted in Today’s Veterinary Business, February 2018
Sexual harassment in the workplace must be dealt with promptly, fairly and firmly.
The #MeToo movement started last fall with claims of sexual harassment and rape against movie producer Harvey Weinstein. Before long, dark shadows were cast over other powerful men — from entertainment personalities Matt Lauer, Kevin Spacey, Russell Simmons and James Franco to politicians Al Franken and Roy Moore.
Although any accusation typically gets more publicity when a celebrity is involved, sexual misconduct occurs in all walks of life. What will you do — and should you do — as a veterinary practice owner or manager if an employee lodges harassment claims? What if the employee joins the #MeToo movement and goes onto social media to name names at your hospital?
If your team has a sexual harasser, your practice may be one complaint away from a disaster. How should your practice respond to the multilayered issue of sexual harassment? Do you know how to respond to complaints and proactively protect your practice?
Knowledge Is Power
First, take a good, hard look at your hospital’s sexual harassment training program and be honest with yourself. What is the quality of the program and how much effort do you put into it? If the program isn’t as well thought out and implemented as it could be and should be, you’re not alone, but improving it must be a priority. The training must pay more than lip service to the issue and must not be only a way to limit your liability if or when a complaint occurs.
Your program and policies must make a stand for respect and equality in the workplace, and you must amplify that by how you train, by how you communicate and by how you serve as a role model in your practice.
If you don’t have an anti-harassment training program, you need to create one now. It must be a top priority. You need to carefully craft harassment and sexual misconduct policies and procedures and share them with all your employees. Consider role-playing sexual harassment scenarios to give your team the opportunity to demonstrate and discuss the true impact of sexual harassment. If you don’t know where to start, consider hiring a practice consultant or human resources expert to construct a plan and conduct in-clinic training.
Your policies and procedures should provide multiple ways for an employee to report acts of harassment. If the only official avenue is for someone to go to his or her direct supervisor, how does it help if the supervisor is the harasser? This scenario, unfortunately, does happen.
Also have a plan for how you will follow through on complaints, and don’t rule out hiring outside legal counsel if appropriate. Once the policies and procedures are finalized, add them to the employee manual and go over them with the entire team. Review the policies annually, or more often if changes are made. Specific policies and procedures may vary by practice, but the bottom line in any document must be that sexual harassment will not be tolerated. It will be investigated promptly and addressed decisively.
Responding to Complaints
The U.S. Equal Employment Opportunity Commission requires prompt and proportionate corrective action whenever harassment is found to have taken place, with workplaces having both a legal and ethical responsibility to appropriately address complaints.
However, this does not mean that managers should assume the accused is guilty before an investigation has even started. Nor should assumptions be made based on gender — for example, assuming that men are the harassers and women are the victims. These approaches, in fact, are among the worst ways to respond. In today’s emotionally heated environment of almost daily news reports of sexual harassment, you must be fair to all parties and never punish a person based solely on an accusation or because of preconceived gender roles.
Step one is to take every complaint seriously and not rush to judgment. After you receive a complaint, promptly follow up and investigate thoroughly. Remember that anyone doing the investigating must remain fair and objective. Listen carefully to the complainant and assure the employee that retaliation for the complaint will not be permitted. Tell the complainant that if retaliation occurs or if harassment continues, you need to know about it right away and will address the behavior.
Document all discussions carefully, including the dates, times and witnesses to relevant events. When you inform the accused of the complaint, assure him or her that a fair and impartial investigation will take place and that guilt is not assumed.
Also, communicate regularly with the parties so they don’t feel ignored and explain that a rushed investigation serves no one well.
Once you’ve collected as much information as possible, use discernment in making the best decision you can about the complaint. Consult with an attorney to make sure you are looking at the situation appropriately. If the attorney has concerns about the investigation or the conclusions, take a good second look. You can move forward once the attorney supports your decision and reasoning.
Document all follow-up steps — from training to discipline — and keep the case files separate from regular personnel files.
Always Be Aware
Managers would be well-served to routinely monitor interaction among co-workers rather than wait for a complaint to be filed. Doing this might prevent less serious behaviors from expanding into full-blown misconduct. Keep an open-door policy as well so an employee feels safe sharing problems. If these conversations alert you to a sexual harassment situation — or even if you hear workplace rumors — they must be investigated.
Here are three additional steps to take:
- Review your employment practices liability insurance policy to see if legal costs associated with harassment are included. Determine if you need more coverage.
- Remain alert to sexual harassment issues and related legal cases, including those happening in other professions.
- Each year, review your sexual harassment policies and procedures, adjust them as needed, and inform all employees about the changes.
Finally, what will your practice do if a team member joins the #MeToo movement and uses social media to out your practice or an employee? Don’t wait for this possibility to become a reality. Instead, be proactive and develop a plan to address the situation if someone connected with your practice goes public with a complaint. Address both the legal and public relations concerns and get input from your attorney and other relevant professionals.
Is your practice prepared? Even if your hospital never gets entangled in the #MeToo movement, ignoring it is a problem. Instead, acknowledge the campaign and explicitly tell your employees that you agree with the fight against sexism both in the workplace and away from it. Work with your managers so they are prepared to foster an environment in which everyone can be safe from harassment.
Train and support your managers so they know how to handle a situation in which they personally observe inappropriate behaviors. Empower your team to handle harassment claims by providing them with all the policies, procedures and resources they might need, and be prepared to back them up all the way.
Originally posted in Today’s Veterinary Business http://todaysveterinarybusiness.com/how-metoo-affects-you-too/
By Charlotte Lacroix DVM, JD
Veterinary Business Advisors, Inc.
As a horse owner and/or trainer, you know the expenses involved in the upkeep of equine animals, not the least of which is medical care. It’s only natural to brainstorm about ways to cut costs and you may ask yourself these questions, among others:
Should I price shop at Internet-based pharmacies?
Should I investigate getting less expensive formulations of these drugs online or through a compounding pharmacy?
Is there any real advantage to FDA-approved drugs that I get through my veterinarian?
If you’ve found yourself going through these thought processes – and even following through and using, say, Internet-based pharmacies – then it’s crucial that you read this article to have a better understanding of the:
shortcomings of Internet pharmacies
dangers of inappropriate compounding
quality processes that FDA-approved drugs undergo
liability for trainers and/or barn owners if an injury occurs under your care and you chose a poor quality source of medication
Inverting order of process
Internet pharmacies are a key component of the emergent ethic of do-it-yourself medicine, wherein certain online-based pharmacies aggressively solicit business, and thereby invert the appropriate order of events leading to procuring a drug prescription, and undermining the necessity of proper veterinary medical care. Clients calling the 1-800-PetMeds web site, as one example, are requested to provide the name and phone number of the customer’s veterinarian along with an offer to get the prescription for free. The requirement of a mailed or faxed delivery of the prescription is not mentioned.
Such a set-up discourages regular veterinarian visits, as there is a perceived lack of need to visit the veterinarian when another company will handle the situation, free of charge. Commercials for these online pharmacies seems to imply that the veterinary exam is unnecessary and a nuisance. Although online pharmacies may have cheaper prices, your horse’s veterinarian has an intimate knowledge of your horse’s health: from existing medical conditions to previous adverse drug reactions to the dangers of combining certain medications.
Yet, as troublesome as these issues described above are, another issue exists with the potential for much more harm: Internet pharmacies that intentionally or inadvertently obtain medications that are not FDA approved. According to the FDA brochure titled, Purchasing Pet Drugs Online: Buyer Beware, while some online pharmacies are legitimate and reputable, others are fronts for unscrupulous businesses operating outside the law. The latter often sell unapproved and/or counterfeit drugs, make fraudulent claims, dispense medications without prescriptions and pass off expired drugs.i
Even if you submit an Rx from your veterinarian to one of these Internet pharmacies, the reality is that the most commonly prescribed drugs – including Gastrogard, Prascend, Sucromate, Adequan, Legend, and Osphos – are the same drugs that are most often illegally copycatted. Manufacturers of illegal medications deliberately formulate them to resemble brand names and they typically contain less of the needed active ingredients – sometimes, none at all.
At the 2010 AAEP convention, experts presented a study on compounded drugs wherein they examined seven different variations (two bottles each) of compounded liquid Pergolide Mesylate. Nine of the 14 did not meet FDA standards for potency – and, even with appropriate storage, by day 15, only three bottles met the standards.ii
Compare and contrast
Meanwhile, the brand name medications obtained by your veterinarian through legal channels are all FDA approved, meaning they have gone through rigorous research and testing to prove that they are safe and effective. In many cases, the companies that produce those drugs have patents that keep other manufacturers from producing the same product, but imitation products are still produced and undergo none of the safety trials of its FDA-approved “counterpart.”
Moreover, just because a “compounded version” is available at an Internet pharmacy or a tack shop does not mean that it, (1) truly contains the same drug, (2) is safe and/or effective, or (3) is legal. In recent years, there have been several scandals involving mislabeled drugs imported. Probably one of the greatest catastrophes was the death of 21 polo horses in March 2009. These horses were set to compete in the United States Open Polo Championship on April 19, 2009, but died of an overdose of selenium, a mineral in their vitamin mixture.iii The case was just recently settled in March of 2016, 7 years after the occurrence. In the end, the compounding pharmacy was found to blame but both the prescribing and administering veterinarian were held under scrutiny for their lack of vigilance in the matter. The bottom line is that, if you aren’t purchasing the brand name drug from a trusted source, you often have absolutely no idea what the ordered product even contains.
So while a brand name medication might seem expensive to purchase through your veterinarian, you can rest comfortably knowing that your veterinarian selected that drug with a thorough knowledge of your horse’s medical condition and how that specific drug works to treat it – and that the drug you receive is actually what it claims to be.
If you choose Internet-based pharmacies
If you decide to use an Internet pharmacy, the best route is to ask your veterinarian to recommend one. There is also a voluntary accreditation program of the National Association of Boards, the Veterinary-Verified Internet Pharmacy Practice Sites, that gives a seal of approval to pharmacies that follow federal and state licensing and inspection requirements, protect patient confidentiality, offer quality assurance and validate prescription orders. Find more information here: http://www.nabp.net/programs/accreditation/vipps/
In 2013, a report was released from the AAEP Professional Conduct and Ethics Committee’s subcommittee that reviewed Internet pharmacies. Two additional concerns were named: one, if a pharmacy that distributes drugs of unknown content, quality, purity, safety and/or efficacy does not provide a location, uncertainty exists about enforcement jurisdiction, which can lead to a lack of appropriate oversight. In addition, no regulating body was able to provide a clear and enforceable definition of a valid vendor, which means that enforcement is, at best, contextual and subject to interpretation. To quote: “In summary, even the legal activities of these different types of medication providers can be ethically questionable. At this time, there does not appear to be a reliable regulatory structure in place to address any of the issues described here.”iv
Compounding for Equines
What if a reputable compounding pharmacy can produce a similar product at a lower cost? Can’t your veterinarian just provide a prescription so that you can pursue that option?
First, let’s define the term. Compounding, generally speaking, is a drug manipulation beyond its originally labeled form – and this process can be done legally or illegally. Its legal purpose is to individually mix drugs for specific patients with special needs that cannot be met with any FDA-approved drugs. Therefore, because a compounded drug is intended for a specific patient, it cannot currently be compounded in bulk or compete with FDA-approved drugs.
Veterinarians can legally compound a drug, as can a pharmacist upon receipt of a veterinarian’s prescription for a specific patient. It can include modifying an approved drug or, in certain circumstances, preparing a new formation using bulk active pharmaceutical ingredients (API). Typical examples include:
Mixing two injectable drugs into one syringe
Creating an oral suspension from crushed tablets
Mixing two solutions together (e.g., to instill into ears)
Creating a transdermal gel
Adding flavoring or formulating flavored medicated treats
Compounding is legal when these criteria are met:
Complying with federal and state laws governing compounding and extra-label use
Prescribing/compounding on the basis of an established veterinarian-patient-client-relationship (VPCR)
Prescribing/compounding only in the absence of an FDA-approved drug and being able to demonstrate that failure to treat would result in harm to the patient
Prescribing/compounding commensurate to a specific patient’s need and minimizing compounding in advance of expected need
Compounding must be performed by a licensed veterinarian or pharmacist
Compounding is not legal when, as just one example, the compounding creates “mimic drugs” that are created for economic gain and are intended to copy available FDA-approved drugs. Prescribing or producing large quantities of compounded drugs for stock-piling or resale to other veterinarians or horse owners is also illegal – and, in many states, keeping inventory not commensurate with specific patients’ needs is also illegal.
Although compounding meets a niche need, multiple studies have demonstrated that products from compounding pharmacies have wide variations in drug concentrations, shelf life, and effectiveness. They also are not predictably safe.
For example, a compounded drug might have anywhere from 50% to 150% of the claimed concentration – and, unfortunately, there’s no way for you or your veterinarian to know which batch you received. Whereby the brand name product comes directly from the manufacturer with several quality control measures taken during its production, compounding pharmacies require human input to create the product, and this inherently leads to mistakes. There is no way for you or your veterinarian to know whether the medications you order through a compounding pharmacy contain the correct concentration of a drug, whether they will be effective at treating your particular horse and/or safe.
Note: In May 2015, the FDA has released proposed guidelines that, if approved, would permit animal drugs to be compounded from bulk substances in certain circumstances. This does not negate the need of working closely with a veterinarian to determine the best treatment for a particular animal.v
The FDA undergoes a rigorous quality process to ensure the safety, efficacy and consistency of each medication, and conducts post-marketing monitoring of adverse reactions for each drug that it approves. Some experts estimate that it takes, on average, four to six years and millions of dollars for one single FDA-approved drug to go from laboratory to marketplace.vi After the drug is approved, the manufacturer must continue to prove the medicine’s consistency and efficacy and pass plant inspections that review manufacturing processes. They also must monitor and record adverse reactions to a particular drug throughout its lifecycle and report those results to the FDA. Once a patent expires, other manufacturers can create generic drugs but must scientifically prove that their medications perform in the same way as the branded drug to get FDA approval. So, by paying for FDA-approved medications, you’re also paying for the extensive research and quality control that ensures that the drug consistently contains what it’s said to contain and is safe and effective.
Trainers are under increasing amounts of scrutiny since May 2012 when a horse named Humble died shortly before the Devon Horse Show. He was given an injection two hours before the show, after which he collapsed and died. In the three days before the event, he was scheduled to receive anti-inflammatories, corticosteroids, muscle relaxants and more, 15 different treatments in total. The chairman of the United States Equestrian Federation’s veterinary and medications committees criticized the number of drugs; in this case, the trainer was not found liable but coverage by the New York Times in December 2012 has brought significant attention to the issue, with trainers being watched more closely in their uses of equine drugs.vii
Each of these factors – risks associated with Internet pharmacies, challenges with compounding and increasing attention to medications used by trainers – highlight the importance of making appropriate choices for equine pharmaceuticals. A horse’s veterinarian knows the animal’s specific needs, can perform through exams and prescribe a treatment specifically tailored for its health requirements.
Reporting Information About Animal Drugs and Devices
Any complaints of medicines dispensed should be made with the FDA: http://www.fda.gov/AnimalVeterinary/SafetyHealth/ReportaProblem/ucm055305.htm
You can report adverse drug experiences and product defects to FDA in one of the following ways:
1. For an FDA-approved product, we recommend calling the drug company to report the adverse drug experience or product defect. The law requires the drug company responsible for the approved product(s) to submit reports of adverse drug experiences and product defects to FDA. The drug company’s phone number can usually be found on the product’s labeling. When you call the drug company, tell them that you wish to report an adverse drug experience or product defect and ask to speak to a technical services veterinarian. The technical services veterinarian will ask you a series of questions about the event, will complete an adverse drug experience reporting form, and will forward the report to the FDA’s Center for Veterinary Medicine (CVM). The technical services veterinarian may also contact the veterinarian who treated your pet to obtain more information about the adverse drug experience.
2. If you prefer to report directly to the FDA, you can submit FORM FDA 1932a, “Veterinary Adverse Experience, Lack of Effectiveness or Product Defect Report”. The 1932a form is a pre-addressed, pre-paid postage form which can be completed and sent through the U.S. Mail. You can use this form to report adverse drug experiences for any animal drug (approved or unapproved by FDA) or animal device. Unapproved drugs include compounded drug products.
If you need a hard copy of the form, you can call 1-888-FDA-VETS (1-888-332-8387), or you can write to the following address: Document Control Unit (HFV-199) Attention: Division of Veterinary Product Safety Center for Veterinary Medicine Food and Drug Administration 7500 Standish Place Rockville, MD 20855-2764
i Purchasing Pet Drugs Online: Buyer Beware (March 2010, FDA Consumer Health Information, U.S. Food and Drug Administration
ii What’s the Best Treatment? Dispelling the Myths About FDA Approved Drugs, Compounded Products and Medical Devices (November 2014), The Equine Vet Advisor, Vol. 1, No. 1
iii Thomas, Katie, Deaths of Polo Horses Highlight Practices of Disputed Pharmacies (April 30, 2009), New York Times
iv Scollay, Mary, DVM, and Cowles, R. Reynolds, DVM, Ethics: Internet pharmacies and the current methods of providing prescription medications to clients (February 2013), Equine Veterinary Education, page 111
v Loyle, Donna, Feds looking to change the game on compounding (August 21, 2015), DVM360 Magazine
vi What’s the Best Treatment? (November 2014)
vii Bogdanich, Walt, Sudden Death of Show Pony Clouds Image of Elite Pursuit (December 27, 2012), New York Times
In the law of professional negligence, the standard of care is the benchmark by which others assess a veterinarian’s competence. To be within the standard of care, veterinarians must perform their duties with an average degree of skill, care and diligence exercised by colleagues practicing under the same or similar circumstances. Unfortunately, this is a general rule and not always helpful when one is trying to determine whether or not to do something in a given situation. For example, when is it or isn’t it necessary to refer a patient?
In general, compared to other professionals, veterinarians are minimally regulated. Aside from the state board of examiners, DEA and OSHA, few governmental agencies interfere with how we practice medicine. This is a good thing, because veterinarians can still exercise independent judgment. It is a bad thing, however, because it is not clear as to what and what is not the standard of practice. For this reason, authors of this manuscript have compiled a set of veterinary care standards for various exotic species. We believe that it is better such standards are articulated and published “within” and “for” the industry, rather than waiting around and having the lawyers and courts determine the standards one by one, each at the expense of a veterinarian’s career.
There are primarily two areas of law that regulate the conduct of veterinarians and help ensure that veterinarians act prudently and reasonably in their dealings with clients and their animals. The first is the civil court system that adjudicates claims made by clients who allege that their veterinarians have acted negligently. The second is the state board of examiners which is an administrative office charged with enforcing a state’s veterinary practice act which sets forth laws with which veterinarians must comply to obtain and maintain their veterinary licenses. In performing their daily clinical duties, veterinarians should be cognizant of these two areas of law since they represent the two principle avenues by which clients may have complaints addressed.
Receiving letters from the state board of examiners and or a disgruntled client’s attorney can be very distressing, causing veterinarians to respond impulsively and not always in their best interests. This is especially the case with veterinarians who have been practicing for only a few years since they are not likely ever to have been named in a lawsuit or reprimanded by a regulatory agency. It is important for veterinarians to realize that how they initially respond to such allegations can have a significant impact on the outcome. For this reason it behooves us to become knowledgeable about the processes by which state boards and the courts adjudicate such allegations. The following scenario illustrates how these procedures work in real life.
Mrs. Bridges brings in Martinique, her 2 year-old female iguana, to Dr. Steel, a small animal practitioner who prides himself in being knowledgeable about exotics as he is a member of the Association of Avian Veterinarians. Mrs. Bridges informs Dr. Steel that Martinique has not eaten for 2 weeks and after performing a physical examination, Dr. Steel diagnoses “Egg Binding”, a common condition in both birds and reptiles. Without advising Mrs. Bridges of his limited experience with reptiles, nor offering her a referral to a colleague who has more experience, Dr. Steel obtains Mrs. Bridges’ consent to perform a spay surgery on Martinique. Dr. Steel has performed many spay surgeries on birds to treat “Egg Binding”, and performs the same surgical procedure on Martinique whereby he removes the shell glands without removing the ovaries. Martinique is sent home and recovers well from surgery after 3 weeks of antibiotics and hand feeding.
Next spring, Martinique goes off her food again, but this time, she is lethargic and has a markedly swollen abdomen. Mrs. Bridges is concerned this is a recurrence of the same problem and brings Martinique to a new vet in town, who advertises herself as an exotic veterinarian with expertise in reptiles, birds and pocket pets. Dr. Zoo examines Martinique, performs an x-ray and ultrasound, and diagnoses “Egg Binding.” Mrs. Bridges is puzzled and frustrated as to why Martinique has the exact same condition, when the surgery performed by Dr. Steel, a year ago, should have permanently fixed the problem. Dr. Zoo, also is confused, and with Mrs. Bridges’ consent obtains a copy of Martinique’s medical records and contacts Dr. Steel.
The medical records are vague at best. The only notation relative to the surgery is “spayed, surgery routine, recovery uneventful.” Dr. Steel confirms the information in the medical records and informs Dr. Zoo, in a patronizing manner, that his experience is that reptiles are just like birds, and their shell glands can be removed without removing their ovaries. In a defensive tone, he tells her that he has been performing these procedures on reptiles long before she was ever admitted to veterinary school.
Dr. Zoo responds to Dr. Steel by informing him of her residency training in exotics, experiences working at various zoos around the country, and tells him that reptiles are not at all like birds and must have their ovaries removed. She further explains that since the ovaries were not removed during the first surgery, Martinique has re-presented with the same symptoms because she has ovulated eggs, which are now in the coelomic cavity. In fact, she tells Dr. Steel that it is likely that Martinique was just pregnant a year ago and did not have “Egg Binding” condition as he had diagnosed and due to his misdiagnosis, Martinique will need a second surgery.
After speaking with Dr. Steel, Dr. Zoo informs Mrs. Bridges that Martinique will need a second surgery and discusses the procedure and fees involved. Mrs. Bridges, who is angry that she has to pay a second time for the exact same procedure, asks Dr. Zoo to discount her fees. While sympathetic and understanding, Dr. Zoo explains to Mrs. Bridges that a discount is not possible. Frustrated, Mrs. Bridges leaves Dr. Zoo’s hospital with Martinique. Later that night Martinique became weak, started mouth breathing and was unresponsive to touch. Mrs. Bridges rushed her pet to the local emergency clinic where the doctor on duty performed an emergency exploratory. Sadly, Martinique died during the recovery.
Three months later, Dr. Steel receives two letters; one from the State Veterinary Board of Examiners and another from Mrs. Bridges’ attorney. The state board letter requests Dr. Steel to respond to Mrs. Bridges’ assertions that Dr. Steel was negligent in (a) failing to inform her that the he was not experienced in treating reptiles; (b) failing to offer a referral to a veterinarian who was qualified and experienced in treating reptiles; (c) misdiagnosing Martinique’s condition; (d) performing a surgical procedure below the standard of care; and (e) failure to maintain appropriate medical records. The correspondence from Mrs. Bridges’ attorney includes a copy of a complaint filed with the state court alleging malpractice and a demand for $100,000, for economic and emotional distress damages.
What should Dr. Steel do? Responding to Allegations of Professional Malpractice
How veterinarians address such accusations will in part depend on whether the allegations are in the form of a lawsuit, state board complaint, or both. Regardless of the form in which the allegation is made, the first step veterinarians should take is to carefully read the complaint and determine what is being requested of them and in what time frame. Once this information has been assimilated, they should gather the pertinent medical records and any other documentation relating to the services in question and write down in chronological order their recollection of the events.
In this case, the complaints allege that Dr. Steel performed a procedure for which he had insufficient knowledge, failed to refer the case and had poor medical records. The facts indicate that Dr. Steel examined Martinique, made a diagnosis and performed the spay to treat the “Egg Binding.” Dr. Steel should carefully review the medical records to corroborate his recollection of the events. Unfortunately in this case, because the documentation is poor, it will be a scenario of Dr. Steel’s word against Mrs. Bridges’. For example, it will be difficult for Dr. Steel to claim that he informed Mrs. Bridges of alternatives, including a referral, as there is no such notation in the records. Since Dr. Steel has a legal obligation to maintain medical records, the fact that he hasn’t will imply that he also was careless with his medicine. As he reviews the records, Dr. Steel should write down the events that led to Mrs. Bridges’ complaint. Most veterinarians will find this helpful since it will refresh their memories, help them develop a consistent “story” as to what happened, and provide a draft from which to develop a written response.
So as not to compromise his defense in the lawsuit, Dr. Steel should immediately upon receiving the complaint, contact his professional liability insurance carrier and ask for advice. However, if Dr. Steel suspected earlier that Mrs. Bridges was likely to pursue legal action, he should have contacted his insurance carrier at that time. Insurance carriers may differ in how they handle negligence actions, but usually require the defendant to fill out a claims form in which the veterinarian describes the circumstances that led to the claim. A claims representative then reviews the facts, makes a recommendation as to a course of action and may assign an attorney to the case if the complaint cannot be settled quickly. In this case, if Mrs. Bridges is offered a settlement and rejects it, it is likely an attorney would be assigned to defend Dr. Steel since in this case it appears that Dr. Steel’s care was substandard in several respects.
In dealing with the letter from the state board, Dr. Steel should be aware that he will most likely be defending his conduct at his own expense, since professional liability insurance carriers generally do not provide coverage for state board actions (exception: AVMA-PLIT now offers a limited policy insuring against state board actions). While Dr. Steel may respond on his own, it is usually advisable for him to obtain legal advice as to how he should respond to the allegation(s) and at the very least have an attorney review his letter. In drafting his response, Dr. Steel should not underestimate the time and effort it will take to address all the issues in the complaint, in an organized and articulate manner. Responses that are, disorganized, incomplete and difficult to follow, often lead to further investigation by the board as opposed to an early dismissal of the charges. Additionally, Dr. Steel may find it helpful to consult with other veterinarians to determine whether they use inform their clients of alternatives and/or “wing it” on exotic patients. This will assist Dr. Steel in determining whether he acted within the standard of care and provide an indication as to his liability.
The burning issues for Dr. Steel of course, are whether he was negligent in failing to (a) refer Martinique, (b) remove the ovaries and, (c) maintain proper medical records. Our courts and juries decide negligence on a case by case basis in light of the specific facts and circumstances of each situation, but, veterinarians should be aware of a few general principles. First and foremost, it is important to note that a veterinarian can be found negligent even if he or she did not intend to cause harm. Simply put, “I didn’t mean to” is no defense to “you should have known better”. A simple mistake can lead to liability.
Secondly, veterinarians can be found negligent even if the rest of their colleagues would have acted in the exact same way. Judges can determine that the entire industry is at fault if it is in the public’s interest. Judge Leonard Hand, a famous judge once wrote in his opinion “courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.” Hence it is a false security to rely on what the rest of your colleagues are doing.
To recover damages from a veterinarian based on negligence, a client must prove four elements by a preponderance of the evidence, meaning it is more likely then not that the veterinarian erred:
Duty of Care. Clients must show that their veterinarians “owed” them a duty of care to provide veterinary services of a certain standard. This element is easy to prove, because courts almost always find that once a veterinarian has agreed to provide veterinary services, the veterinarian also has assumed the legal duty to take reasonable care in providing such services. In our scenario, Dr. Steel clearly owed Mrs. Bridges a duty to take reasonable care in providing veterinary services to Martinique.
Breach of Standard of Care. A duty to provide services within the standard of care is breached when veterinarians fail to meet the standard of care as established by the veterinary profession, that is, when they fail to act with the level of skill and learning commonly possessed by members of the profession in good standing. Mrs. Bridges probably will be able to prove breach of duty if her attorney can show that veterinarians routinely remove ovaries when spaying iguanas. Conversely, Dr. Steel will attempt to establish that he did not breach his duty of care, by showing that most general practitioners do not remove the ovaries and the patients do just fine. It is at this stage that expert witnesses are hired to testify as to what is the standard in the case at issue.
Proximate Cause. Clients must then prove that the veterinarian’s failure to provide services within the standard of care “proximately” or “closely” caused the harm suffered by the clients. If the harm suffered by the client is not a result of the veterinarian’s actions or omissions, it would be unfair to hold the veterinarian responsible. In our case, it is clear that Martinique’s death was caused by Dr. Steel’s initially performing the incorrect surgical procedure. Suppose, however, that Mrs. Bridges is suing Dr. Steel because Martinique died of renal failure a month after spay procedure. It will be a lot harder to prove that Martinique’s death resulted from anything Dr. Steel did or failed to do during the procedure.
Damages. Even after they have proved negligence, clients also must establish that they suffered harm resulting from such negligence. Since animals are considered as property under the law and most state courts do not recognize loss of companionship, this harm is usually in the form of an economic loss. As a result veterinary malpractice awards are usually much lower than in human malpractice cases and clients usually only recover the fair market value of the animal, costs incurred for veterinary care, and loss of income or profits in cases where the use of the animal is lost. However, we are seeing more and more states entertain the possibility of awarding non-economic damages and this is likely to increase the scrutiny with which standards of care are evaluated as well as the number of lawsuits filed against veterinarians.
Responding to Client Complaints
Veterinarians often can avoid receiving letters from clients’ attorneys and state boards by addressing client complaints long before client dissatisfaction leads to legal recourse. Clients often resort to litigation and or state board action when they believe their veterinarian either acted negligently or failed to respond appropriately to their concerns. When faced with a client complaint, veterinarians should consider the following:
1. Listen to the client.
a. Clients who have complaints are often angry and need the opportunity to “vent”.
b. Veterinarians should show their clients that they are taking the matter seriously by listening carefully to what their clients have to say and taking notes of the conversation.
c. Do not interrupt the clients since this will only anger them further and likely interfere with a clear understanding of the facts.
2. Remain calm and objective.
a. Avoid becoming defensive and emotional, since this may inadvertently reinforce the client’s belief that the veterinarian acted inappropriately with respect to the care of the client’s pet.
b. A client’s criticism of a veterinarian’s actions, even when fully justified, does not necessarily mean that any negligence occurred. Veterinary medicine is an imperfect science and veterinarians are not omnipotent.
3. Communicate, communicate, communicate.
a. Many lawsuits are filed because veterinarians fail to adequately communicate with their clients. Often the client does not fully understand the diagnosis or proposed treatment and has unrealistic expectations as to the veterinarian’s services and the respective outcome.
b. Veterinarians can enhance communication and reduce potential misunderstandings by 1) obtaining informed consents, 2) providing fee estimates, 3) encouraging questions, and 4) providing handouts explaining the contemplated services.
c. Veterinarians should use “plain English” when communicating to clients since medical jargon may not only confuse clients but also intimidate them, making them reluctant to ask important questions.
4. Show sympathy and concern.
a. Clients whose pets have died are often emotionally distraught and under certain circumstances may seek to blame someone, sometimes their veterinarian, for their pet’s death. Veterinarians who are compassionate and attempt to comfort their clients are more likely to diffuse their client’s perception that the veterinarian should be held accountable for their pets death.
b. Veterinarians should not hesitate to recommend grief counseling for clients who appear to have difficulty coping with the loss of their pet. Several veterinary schools have such hotlines, including, the University of California at Davis, University of Florida and Colorado State University.
5. Coach the staff.
a. Staff members can help diffuse client complaints and should be coached in what to do and say, if anything, when a client complains.
b. The staff should remain professional at all times and avoid “offensive – defensive” discussions with clients who may be less intimidated by staff members and therefore more hostile to the staff as compared to the veterinarian.
6. Do not admit fault or offer a settlement.
a. Veterinarians should avoid making apologetic statements or excuses and should not admit fault, since this would compromise their case in the event a lawsuit was later filed. Veterinarians with only a few years of experience are more likely to feel guilty and accountable for bad outcomes, even though there was no negligence. Remember that “feeling guilty” is NOT the same thing as “being guilty.”
b. Veterinarians should not offer to settle a malpractice charge or agree to any settlement offered by the client without first contacting their insurance carrier and attorney since it may be interpreted as an admission of fault, thereby prejudicing their case. Under certain circumstances it may be appropriate to reduce the client’s bill in an attempt to amicably and expeditiously resolve a dispute, but without admitting liability.
Avoiding Client Complaints
Just as an ounce of prevention is worth a pound of cure, the best practice to avoid being dragged into a lawsuit or state board investigation is to take measures to avoid client complaints. Even if successful, Dr. Steel will spend a lot of time, effort and money, defending himself in court and before the state board. In retrospect, it would have been far less costly and burdensome if Dr. Steel had informed Mrs. Bridges that he had limited experience with reptiles and Martinique should be referred to an exotic veterinarian with expertise in treating reptiles—at a minimum Dr. Steel should have done his research before performing surgery.
Veterinarians will save themselves a lot of grief if they periodically evaluate their practices to identify areas where preventive measures and procedures will help avoid complaints before they start. Additionally, veterinarians should regularly consult with the staff, their colleagues and perhaps even their insurance carrier to ensure that they are aware of the latest preventive measures adopted by other practitioners. Keeping abreast of developments in the legal liability field should be an integral part of any veterinarian’s continuing professional education. Because people are people, there is no way to prevent client complaints entirely. But in this area like many others, ignorance is dangerous and a preventive attitude is the best approach.
Being accused of malpractice can be a disconcerting experience for any veterinarian, but especially for associates who have been in practice for only a few years. These allegations can come in the form of a civil law suit or state board action and require veterinarians’ immediate attention so as not to compromise their defense. Preparing a defense against such allegations is facilitated by having knowledge of the law of negligence and an understanding of the adjudicatory process. Nonetheless, the best defense lies in addressing client complaints when they first arise by using honed listening and communication skills, keeping abreast of the standard of care within the industry and adopting preventative measures.