Guilty Until Proven Innocent-What If You Are Falsely Accused of Sexual Harassment?

It is a lively Friday afternoon. As usual, just an hour from close, two separate frantic clients call into your practice: one, of a dog that has been vomiting hourly since yesterday morning, and two, of a suspected blocked cat. The cat arrives first, and you and your team swoop it to the back for further examination. The cat is aggressive, and it takes two nurses and one assistant to swaddle it into position for a cystocentesis. As you dive into the crowded huddle, needle in hand to collect the urine, you lean your left hand on the assistant’s back for support. You successfully collect the urine and finish the rest of your evening’s work. It has been a long week, but you feel good about the day’s outcome and head home. The next morning, before your shift, your practice manager calls to inform you that someone has filed a complaint against you, that you are currently under investigation, and that you are suspended until the investigation has finished. With not much time to process this sudden information, you do not ask any questions, and hang up the phone. Now what?

Sexual harassment is not an unfamiliar concept to most people today. Increasingly in the news because of the #MeToo movement, more victims are becoming courageous enough to speak up against predators that have, for many years, held a position of power and a sense of untouchability. Unfortunately for these victims, a second population exists with ulterior motives, people who are using this movement inappropriately to harm innocent colleague reputations, careers, and livelihoods. America has yet to develop a method that distinguishes a true victim from a disgruntled coworker, ultimately diluting the real victims’ stories and harming innocent people. In addition, the current misconceptions of large false reporting rates lead plenty of real victims to return to their fears of reporting sexual harassment or assault.

The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as “unwelcome advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.” Sexual harassment can be performed by people of both sexes and the act does not specify that the victim is to be of the opposite sex. A harasser may be any work-related individual (colleague, supervisor, or non-employee) and the victim may be anyone affected by the offensive conduct. Sexual harassment has two main types: quid pro quo and hostile work environment. Quid pro quo, a demand for sexual favors in exchange for employment opportunities, only requires one incident to file a charge. A hostile work environment, a workplace that is sexually demeaning, hostile, or intimidating, relies upon behavioral patterns to have validity.

There are a few deadlines to consider if proceeding in a sexual harassment case. In federal sexual harassment cases, the victim has to file a charge with the EEOC within 180 days. When the EEOC responds by issuing a “right to sue,” the complainant has 90 days to file a federal lawsuit. When investigating, the EEOC will consider the context and nature of the sexual behaviors.

Why Now?

What explains the rise in sexual harassment across America – or at least in its reporting? Historically, individuals risked professional and social suicide by accusing a colleague of inappropriate sexual behavior, consequences strong enough to suppress most victims’ voices. This culture existed, fairly unchanged until recently; and, in fact, in 2016, the EEOC’s total number of sexual harassment complaints was 15 percent lower than in 2010.

Harvey Weinstein’s sexual harassment case, though, created in October 2017 what has been termed the “Weinstein Effect.” While the EEOC has not released its annual numbers following the Weinstein scandal, state-level numbers suggest it has already had a significant impact in empowering victims to come forward and break the societal stigma. Looking at a state level, from January to March 2018, California’s Department of Fair Employment and Housing received 939 sexual harassment complaints, an 86 percent increase from the previous year’s 504. From October 2017 to April 2018, New York’s State Division of Human Rights received 353 sexual harassment complaints, a 60 percent increase from the previous year’s 220. While the reason cannot yet be nailed to the Weinstein Effect, these numbers are noteworthy.

Dan Cassino, an associate political science professor at Fairleigh Dickinson University, wrote a Harvard Business Review article suggesting an additional factor: that the apparent increased sexual harassment claims not only reflect empowered individuals reporting abuse, but also an increase of masculine insecurity as women rise in the workforce. This insecurity could be leading to additional inappropriate actions taken by a percentage of men to maintain a sense of power.

Impact in the Veterinary Industry

Since 1986, women have outnumbered men in the veterinary industry, first in school and now in the field, and this trend is continuing. The American Veterinary Medical Association (AVMA) reports that the current veterinary market consists of 55 percent female and 45 percent male veterinarians. Feminization of the veterinary industry is even more apparent when looking at technicians, a field long consisting of females. In 2017, the Association of American Veterinary Medical Colleges reported that women hold 90 percent of veterinary technician positions. If Dan Cassino’s hypothesis is true, the veterinary profession risks significant gender conflict and potential concurrent rises in sexual harassment claims with its continuing feminization.

Here’s one example of how a large veterinary corporation is addressing sexual harassment claims. Mars (Banfield, Blue Pearl, Pet Partners, and VCA) has a zero-tolerance policy that permits immediate discipline or termination of an alleged harasser for just one indiscretion.

Accused of Sexual Harassment? What to Do

Sexual harassment remains a relatively young concept with all-too-often vague workplace guidelines for protecting employees both from sexual harassment and false sexual harassment claims. Returning to our hypothetical veterinarian faced with a sudden sexual harassment claim in this article’s introduction, the following steps must be taken if you are accused:

  • Hire a qualified criminal defense attorney immediately.
  • Realize the importance of these accusations and their effect upon your job stability and reputation.
  • Prepare for the cost of high legal fees.
  • Know that you are not required by law to say anything to the police.
  • Remain calm and do not allow emotions to dictate your actions.
  • Understand that, when an employer receives a sexual harassment complaint, the law requires them to take immediate remedial action. The process is going to move fast, and you will have to organize and present your thoughts.
  • Participate fully in the investigation. This means to document everything, compile a list of possible witnesses, and ask to see the written complaint. In the theoretical instance we’re using, you would write down the names of the two technicians as well as any other employees in the room during the alleged event. You want to quickly be able to address any misinterpretations and to calmly share your recollection of the event.
  • Disclose any mitigating factors. If, for example, this assistant was someone you used to have a sexual relationship with, that’s an important detail to share with your investigator. While the hospital may terminate both of you for holding a clandestine sexual relationship, the extra details you provide will help the investigator understand the situation.
  • Share context. You may want to share, for example, that in the incident being investigated, you had not thought of the assistant’s reaction. People do not uniformly or predictably react to a brush of the hand, and addressing any misunderstandings, such as resting your hand on a coworker’s back during a busy time, will allow all parties to share viewpoints and clarify interpretations. It is important to tell your investigator you had not meant to offend anyone, and your intentions were misunderstood.
  • Reaffirm your commitment to the practice’s anti-harassment policy.

There are also a few steps to avoid, and here we leave our hypothetical example and are speaking more broadly. First, when explaining the situation, you should not state that, because you and the victim were the same gender (if this is the case), the intention could have not been sexual. Second, you should not state that your actions or phrases were based on an inaccurate assumption of the victim’s gender or sexual orientation. Finally, you should not use the victim’s promiscuous history, if that’s potentially true, to explain your reasoning for an incident.

The reality is that employers today often take strict remedial actions against the alleged harasser out of concern for business liability. This is done, perhaps with the best of intentions, to avoid further antagonizing the complainant, and helps to minimize the employer’s risk if facing a discrimination charge with the EEOC. In fact, since most workplace contracts are “at will,” termination is the quickest action that the employer can take to defend the practice.

What Next?

If your practice declares you guilty of sexual harassment, your attorney can negotiate your exit to receive a severance package and a neutral reference. By law, the employer must keep the allegations confidential, not discuss the situation or criticize you with others present. Ideally, this minimizes the risk to your reputation. If you are lucky enough to reach an understanding that the complainant was mistaken, you should ask the employer/investigator to refrain from putting any of this information into your personal file.

The situation is quite different, though, if a coworker filed a sexual harassment claim with malicious intentions. If these intentions become evident during the investigation and the investigator proves the claim to be false, that complainant faces a number of potential consequences: legal penalties (court fines, contempt order, and possibly even criminal charges), a slander lawsuit, perjury charges if the individual lied during a trial proceeding, and employment termination. And, because even settled false claims brand you with a virtual scarlet H by peers, you may sue the complainant for the losses associated with the false claim to cover reputation damages, lost wages, and employment termination. If terminated by the practice, you can also claim defamation.

Proactively Protect Yourself

Sexual harassment claims can cause massive detriments to practices, so many human resource departments – corporate and private alike – attempt to mitigate damage to them. This means that the human resource team often makes decisions in the best interest for the practice, so it’s best if you can simply protect yourself before an incident ever arises.

Scott Stender, a Workplace Consultant and retired police officer, states that “you don’t need to work in fear. You do, however, have to understand professional boundaries and use emotional intelligence. This can be harder than it looks, as in the workplace many of us confuse professional and personal boundaries. You need to remember that when you’re talking with a co-worker or employee, it’s not the same as talking with your friend.”

To avoid being accused of sexual harassment in today’s work environment, it is best to follow these recommendations:

  • Regularly reflect on your actions and think about how they could be interpreted.
  • Be cautious about mixing personal and professional lives.
  • Physical contact at work should ideally be limited to a handshake.
  • When giving a compliment, focus on work performed, not that person’s physical appearance.
  • Remain self-aware at practice events by:
    • limiting alcohol intake
    • not staying late
    • attending only company-sponsored activities

These are not always easy guidelines to follow in the sometimes emotion-filled veterinary profession. Ultimately, if you do something that you believe to be questionable, seek an employer’s assistance before the employer comes looking for you.

Sexual Harassment Investigations

Employers must deal with the stress of a potential lawsuit, the emotional impact of the investigation on the person making the claim, and the negative impact on the person being accused, especially challenging if the claim is difficult to investigate. It is challenging to remain objective to ensure fairness to both parties when faced with a sexual harassment complaint.

And, you, as the employer, may be held liable if you knew about or should have known of the harassment and failed to take “prompt” effective remedial actions. In some cases, the U.S. Supreme Court has ruled that employers in hostile work environments exercised reasonable care and the complainant unreasonably failed to take advantage of corrective opportunities to avoid harm. It is important to know that, while tempting, the employer cannot conduct a criminal background check using an outside agency without an employee’s prior consent.

A complaint, by itself, is not proof of sexual harassment, nor does an unproven allegation falsify a claim. You must stay open-minded and thoroughly investigate for the benefit of both parties. As this is a subjective and emotional matter, statements made should not be analyzed in a vacuum. For example, a lie does not immediately indicate that the entire story is false. The narrator may be feeling ashamed, embarrassed, or fearful about how previous actions might be interpreted. Sometimes, the accuser may not understand the definition of sexual harassment or its context. The reported conduct may have been mutual, or the accused may not have reasonably been able to know that comments made were unwelcome. When investigating, you should think of two questions to help guide the investigation:

  • Did what is alleged occur?
  • If it did, what is the significance of it (i.e., does it meet the standards of sexual harassment)?

These are good questions to ask not only of your two involved parties, but of every possible witness of the event. Although you want to address this issue efficiently, you must avoid acting without a thorough investigation. This risks a possible lawsuit, regardless of whether the harassment occurred. And, what should you do if it is ultimately difficult to discern the truth? If in doubt, you can justifiably refrain from taking the harshest possible response and discuss with the accused that future allegations will be seriously investigated with a strong potential for termination.

Once a conclusion is reached, the focus turns to appropriate remediation, if needed. The employer faces a few legal challenges in this area and must morally recognize the consequences of his/her decision to both parties. Here is one example, this one associated with protected class: you cannot punish a person more harshly than someone outside of his/her protected class. For example, an accused 30-year-old veterinarian should not be terminated when, a year ago, a 60-year-old veterinarian in a similar similar was given a warning.

Throughout even this part of the process, you must remain cautious about how you speak about an employee. As previously mentioned, employees may claim defamation against a practice in an attempt to remedy their livelihood or reputation. For an employee to claim defamation, the statement must be published, false, injurious, and unprivileged.

Looking to the Future

The veterinary practice provides for specific challenges with sexual harassment. Its traditionally small, owner-operated, family-type hospitals often create a culture of sharing personal issues, prevalent jokes, and methods to release stress. In addition, handling animals necessitate veterinarians and staff to work in close physical proximity. Practices expand these gray risk areas if they employ family members and/or allow intra-hospital relationships, because – even if not objectively true – this can create appearances of favoritism. In more extreme cases, this can lead to the belief that people who aren’t sleeping with the boss aren’t getting the perks.

As a practice owner or manager, you must identify and address these risk areas. While it isn’t realistic to completely change the veterinary culture, you as the employer can work to mitigate human resource nuances before they become problematic. This would include mandating employees to disclose relationships to you, minimizing family-member hires, and establishing a protocol that encourages a professional demeanor in the workplace.

So where do we go from here in the veterinary community? We go forward. We should not regard sexual harassment lightly, especially as women and men finally muster the courage to address their harassers. We should implement and share clear and firm workplace policies, discuss sexual harassment with all of our staff, and favor open conversations over quick online tutorials. When faced with a complaint, we should investigate it seriously out of respect for its consequences to both parties. If wrongly accused, we should stay present and be prepared to fight for our reputations. We must devise universal sexual harassment protocols and sexual harassment definitions to ensure appropriate remediation. Hopefully, we can take the initiative to be one of the first industries to successfully fight this world-wide phenomenon.

The Growth Of Cannabis Derivatives Used as Therapeutic Options in Veterinary Medicine

As pet lovers, it is our primary goal to keep our furry friends happy, healthy and pain free. However, in a world of ever-changing trends, how do owners know what is best for their pets and what is just the newest health fad? Traditionally, veterinarians have been sought out to help guide these decisions but, in this changing climate, reliance upon Dr. Google is becoming more common – and vet visits are becoming less so. An increasing number of people are searching for natural alternatives to medications, and opting for diets for their pets that are grain-free, raw and antibiotic-free. Pet owners are also more commonly using their own homeopathic remedies. While these trends are mainly driven by consumerism and distrust in big pharma, the growing desire for at-home remedies can result in unsafe, unethical and even illegal outcomes.

Veterinarian Responses to Fads

Veterinarians must rely upon scientific research and laws as guidance. Fortunately, with two of the more well-known fads, scientific evidence is relatively cut and dry: grains are not evil and eating raw meat can cause a slew of health problems, such as contracting salmonella. However, when it comes to homeopathic remedies for fleas and ticks, joint pain, dry skin and even neurologic conditions, the evidence is much harder to come by. This is largely due to the lack of regulations on many products that consumers are using for remedies. There are no FDA regulations, for example, on essential oils, herbs or nutraceutical pills, meaning there is no regulatory body confirming what is on the label; therefore, nothing confirming what is in the bottle.

Despite the lack of FDA regulation and any associated concerns expressed by veterinarians, the desire to use natural derivatives is growing among pet owners. And, one specific derivative is getting plenty of press lately: cannabis.

Two Types of Cannabis Compounds

Cannabis, dating back 6,000 years, is the only plant genus that contains the molecular compounds called cannabinoids. The two most notable compounds are tetrahydrocannabinol (THC) and cannabinol (CBD). While poorly divided, taxonomically speaking, cannabis is easily divided into two broad types based on the biochemical make-up. These two divisions are commonly referred to as marijuana and hemp.

The U.S. Drug Enforcement Administration (DEA) classifies Marijuana as a schedule 1 drug, which falls in the same category as heroin and cocaine. Due to its recreational use, it is the more well-known of the two cannabis plants. Marijuana contains high amounts of THC, the psychoactive cannabinoid, and low amounts of CBD, the anti-psychoactive compound.

Hemp, on the other hand, is grown for its seed and fiber properties. Hemp has low levels of THC and high levels of CBD (at least when compared to marijuana). Unlike marijuana, it is not possible to get high off the hemp plant. In fact, you would die of smoke inhalation before reaching high enough levels of THC from hemp to achieve a recreational high. This is due to the low concentration of THC and the fact that CBD is the anti-psychoactive that blocks the marijuana high. Because of that, some people refer to hemp as “anti-marijuana.”

Industrial hemp usage is legal in the United States but, oddly enough, actually growing industrial hemp is illegal. In fact, since 1937, it has been illegal to grow any variety of hemp in the United States.  Under current law, imported hemp products are subjected to zero-tolerance standards for THC, even though the average amount of THC in marijuana is 20%, while the average amount in hemp is 0.3%. Somewhat illogically, the United States government does not distinguish between these two very different plants grown for completely different purposes.

Note About State Laws

In 2017, the number of states permitting industrial cultivation of hemp exceeded the number of states that have legalized medicinal marijuana (33 versus 29 to date). So far, though, few farms have begun cultivating hemp due to resistance from the DEA. This is because, while legalized in certain states, both marijuana and hemp are illegal federally.

Cannabis for Human Medicinal Purposes

So, what is it in these plants that has led to medicinal use? About 20 years ago, scientists discovered a system in the brain that responds to the compounds found in cannabis, specifically in marijuana. The system is called the endocannabinoid system and has been shown to play a role in the cardiovascular, digestive, endocrine, immune, reproductive and nervous systems. The discovery sparked interest in finding specific chemicals in marijuana that could be targeted to treat specific conditions. Since that time, research on medical marijuana has increased significantly but, with the schedule 1 classification, doing approved research is still difficult.

While there are plenty of studies that show promising results in treating conditions, in order to officially conduct research on cannabis, scientists must first get approval from the DEA and the Federal Drug Administration (FDA).  While such studies have shown that cannabis can help manage pain and muscle spasms in multiple sclerosis, as well as improve symptoms of schizophrenia and Tourette’s Syndrome, too few of the studies were controlled clinical trials with placebo treatments.

These results have been mirrored in the series of studies permitted by the DEA at the Center of Medical Cannabis Research, University of California San Diego. The conclusion of these 13 studies was broad but simple: “cannabis may be useful medicine for certain indications.” Many researchers worried about the risk to users, though, with some patients becoming addicted (10%) and others finding the effects “intolerable.”

FDA-Approved Marijuana Drugs for Humans

Despite the unanswered questions and research-related challenges, there currently are three FDA-approved drugs made from marijuana in the United States. Marinol and Cesament are used to treat nausea in chemotherapy and AIDS patients, while Epidiolex is used to treat children’s epilepsy. Furthermore, Sativex is a drug developed in the United Kingdom that has been approved in over 24 countries to treat muscles spasms from multiple sclerosis and cancer pain, and it may be approved in the United States soon to treat pain associated with breast cancer.

Cannabis-Based Products and Pets

Because of the clinical evidence performed to date and experimental evidence by marijuana users, who have self-treated successfully, it is no wonder that people want to use cannabis-based products to help their animals. Given how difficult it is to get research approved for cannabis use in humans, one can imagine the level of difficulty involved in performing cannabis research in animals.

The most commonly used cannabis products on the veterinary market for treatment of animals all contain CBD oil. CBD can be extracted from marijuana or hemp and has claims to treat numerous disorders, including behavioral issues,  seizures and pain. While many veterinarians would welcome a safe and effective new way to treat diseases like arthritis or epilepsy, lack of legality and solid clinical studies makes the situation uncertain.

Veterinary uncertainty, though, has not stopped an array of products from popping up on the market. At conferences, one can be bombarded by naturopathic vendors that appear reputable, making claims on their products that cannot be substantiated. This makes it difficult to differentiate fact from fiction and, unless veterinarians are up to date on the current AVMA and federal standards, they may be tricked into stocking these products at their practices.

In a study that that was performed by the Department of Clinical Sciences and College of Veterinary Medicine and Biomedical Sciences at Colorado State University, published in the Journal of the American Holistic Veterinary Medical Association (JAHVMA) and Scientific Report, veterinarians were assigned three objectives: find out which cannabis products pet owners purchased, their reasons for the purchase and if they perceived a difference in their pet while using the product. The results of this study included 632 pet owners (88.1% dog owners, 11.9% cat owners) who have purchased hemp products from an online site. Most of the dog and cat owners (77.6% and 81.8%, respectively) indicated that they use the hemp product for an illness or condition diagnosed by a veterinarian.

The most common conditions eliciting treatment in dogs included seizures, cancer, anxiety and arthritis. The illnesses or conditions treated in cats were comparable, with cancer, anxiety and arthritis as the most common. The most common side effects reported by both dog and cat owners were sedation and over-active appetite. When dog owners were asked about the perceived positive impacts of the hemp, they reported the highest impact in relief from pain (64.3%), followed by helping with sleep (50.5%) and relief from anxiety (49.3%).  Cat owners perceived the highest impacts as relief from pain (66%), followed by reduced inflammation (56.3%) and help with sleep (44%). This information supports the growing anecdotal stories of the effects of cannabis in pets. In addition, this information provides a platform for researchers seeking to perform clinical studies on not only the effectiveness of hemp but also the adverse outcomes associated with the use of hemp.

Interestingly, this study also surveyed pet owners about their disclosures to their veterinarian about the hemp products used. Just under half of the participants had spoken with their veterinarian about the product, with most indicating that their veterinarian responded positively (61.7%), some expressing no opinion (30.7%) and very few responding negatively (7.7%). While most veterinarians would agree that anything having a positive impact on your pet is, in fact, positive, in this case, it is still illegal. In a recent article by the AVMA titled “Cannabis: what veterinarians need to know,” the AVMA cautions pet owners against the use of chews, oils and nutritional supplements containing CBD, citing the FDA as its regulatory beacon.

Currently the FDA does not approve the use of marijuana or hemp in any form in animals because of the lack of evidence about the safety and effectiveness of the products. The DEA stated in 2017 that “cannabinoids are not found in hemp, except in trace amounts. Therefore, extracts that contain more than trace amounts of cannabinoids must be part of the cannabis plants that are defined as marijuana and regulated as a schedule 1 controlled substance.”

In all this legislation, it might appear that hemp is unfairly getting a bad name; however, the ASPCA poison control center has recently reported an influx of calls and claims that ingestion of hemp-based CBD products causes the same clinical signs as ingestion of marijuana (products containing THC). It is not known whether toxicity is due to quality control issues in unregulated products, differing metabolism rates of CBD, or varying amounts of CBD in products despite label claims. The most common clinical signs include ataxia, depression, mydriatic pupils, hyperesthesia and urinary incontinence. While rare, other signs include vomiting, tremors and seizures with multiple deaths reported due to aspiration. For this reason, the FDA and AVMA caution pet owners against using these products and the FDA has issued numerous warnings to companies that sell products containing cannabidiol.

Conclusion

Overall, studies indicate great potential for cannabis as a treatment modality. If research was less restricted, more safety and dosing studies could be conducted. This would likely help explain, and ultimately prevent, poison-related deaths and begin to address concerns.

What is important to remember is that pet owners aren’t the people who face significant consequences for trying these products. Although it is illegal to sell products containing cannabinoids, and illegal to purchase products containing them, the only parties as of now who have been threatened to be held legally responsible are veterinarians and the cannabinoid-producing companies.

Here is just one example of how a state medical board perceives veterinary use of cannabis-based treatments. The California Veterinary Medical Board states that, while marijuana is legal for adults 21 and over, cannabis is illegal for use in animals. They go on to say that “veterinarians are in violation of California law if they are incorporating cannabis into their practices” and, if the board received a complaint regarding treatment of an animal with a hemp- or marijuana-related product, they would be “obligated to conduct an investigation and take appropriate disciplinary action if the findings so warranted.”

In conclusion, the use of cannabis products for animals warrants the attention of veterinarians and researchers and could one day be a wonderful treatment modality, but it cannot currently be recommended or stocked by veterinarians. It is suggested that both the promises and perils of medical marijuana for animals point to the need for science-based education, regulation and research. So, while we all aim to do what is best for our patients, it is most appropriate to advocate for change while remaining within the confines of the law. It is possible that one day cannabis will be a legal and accepted treatment in the veterinary community, but many steps must be achieved before then.

Am I Practicing The Standard Of Care?

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.

Martinique’s Case

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.

Negligence

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 “[c]ourts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.”[1]   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.
    1. Clients who have complaints are often angry and need the opportunity to “vent”.
    2. 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.
    3. Do not interrupt the clients since this will only anger them further and likely interfere with a clear understanding of the facts.
  1. Remain calm and objective.
    1. 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.
    2. 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.
  1. Communicate, communicate, communicate.
    1. 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.
    2. 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.
    3. 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.
  1. Show sympathy and concern.
    1. 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.
    2. 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.
  1. Coach the staff.
    1. Staff members can help diffuse client complaints and should be coached in what to do and say, if anything, when a client complains.
    2. 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.
  1. Do not admit fault or offer a settlement.
    1. 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.”
    2. 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.

Conclusion

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.

[1] The T.J. Hooper [60 F.2d 737 (2d Cir. 1932)]

Wrongful Termination and Constructive Dismissal

Wrongful termination occurs whenever you fire an employee for reasons that are illegal and/or against your practice’s policies.

Illegal firings include those that involve discrimination, whether because of race, gender, citizenship status or other class protection. If evidence exists for discriminatory terminations by an employer, this can lead to a charge by the Equal Employment Opportunity Commission (EEOC) as well as to private lawsuits by affected employees. It is illegal to fire an employee as retaliation, whether it’s because he or she acted as a whistleblower or otherwise reported workplace activities or filed a workers’ compensation claim. You cannot fire someone because he or she refused to follow through on instructions that would require the employee to perform an illegal act or because an employee discussed labor issues with co-workers. It is also illegal to fire someone because of his or her medical history.

Dismissals that take place in ways that run counter to practice policies are also wrongful and include those where appropriate warnings were not given to the employee before termination took place, as just one example. Or, if your employee had signed an employment contract that stated terminations could only be “for cause” and you treated that employee as if he or she was an “at-will” employee, one that could be fired for any legal reason, that is considered wrongful termination.

Yet another wrongful termination category is one that isn’t often discussed but should be: that of constructive dismissal.

Constructive Dismissal

Constructive dismissal (or “constructive discharge” or “constructive termination”) occurs when an employer makes working in the practice so unpleasant that conditions become intolerable – and so the employee quits. The concept of constructive dismissal is included in wrongful termination laws in most states. And, in those states, whenever an employee resigns because of genuinely intolerable work conditions, that resignation can be legally overlooked because the employer-employee relationship was in fact severed because of the employer’s actions. Legally, this resignation can therefore be considered a firing, which opens the practice up to a lawsuit for wrongful dismissal.

If a former employee who resigned later claims that he or she did so because of a workplace environment that falls under the umbrella of constructive dismissal, that ex-employee will need to prove that certain conditions existed. These conditions are not uniformly defined from state to state, although they are reasonably similar. Typically, the ex-employee must demonstrate how the practice environment was toxic enough that resigning was something that a reasonable person would do. Being able to prove illegal treatment (such as sexual harassment) or working conditions (such as safety violations) is typically part of the process.

Another typical requirement is that the practice owner or employer knew of these intolerable working conditions and/or wanted to cause the employee to resign. Typically, one isolated act is not enough to convince the courts that a case of constructive dismissal exists. Instead, the former employee must typically show how a pattern of an extraordinarily negative environment at the practice existed for him or her. There can be exceptions, however, such as when an employer becomes physically aggressive or even violent towards the employee.

Note that it is also not enough for an employee to simply state that he or she felt the working environment could no longer be tolerated. The court will instead determine how a reasonable person could be expected to act in the circumstances.

Proactive Actions to Take

As the owner and/or employer of a veterinary practice, what should you do? Starting with the most obvious, do not engage in any sort of behavior that could be construed as actions that could make charges of constructive dismissal appear reasonable to a court. And, although you are not required to provide a stress-free working environment, you are required to ensure that a reasonable environment exists.

Carefully observe what takes place at your practice and address any inappropriate behaviors. And, if an employee comes to you with complaints of inappropriate behaviors, take them seriously, investigate and take corrective actions.

Wrongful Terminations Lawsuits at Veterinary Practices

 In 2012, a veterinarian was terminated from her part-time position at the East Baton Rouge Parish Animal Control and Rescue Center; the veterinarian – Amy Cangelosi – ultimately filed a lawsuit against the center, claiming wrongful termination for reporting illegal activity. Cangelosi stated that the newly hired shelter director screamed at her after she spoke out against non-veterinary staff performing euthanasia procedures, as well as when she protested an increase in animals being euthanized – unnecessarily so in Cangelosi’s opinion. She also said that, when she spoke out against measures being taken, she was told not to question the director and was even threatened with termination.

Cangelosi and other long-term employees ended up being fired or resigning over their opposition to shelter practices, which included dogs watching other dogs being euthanized and then placed in a pile, deceased animals being beheaded in front of living ones and so forth. One comment made by Cangelosi was that the director “tried to get rid of me by making it miserable,” making the situation a classic foundation for constructive dismissal.

A more recent case involved a housekeeper named Sonia Wescott who was employed by a veterinary clinic in Philadelphia. She worked at the practice for six years, leaving voluntarily when she moved. She was re-hired when she returned to the area but was fired less than a year later after taking a short medical leave of absence.

She had injured her arm at the practice and reported the injury to management. Two days later, she needed to go to the hospital because of cellulitis. She tried returned to work but was sent home when she was still not able to perform her duties. She began taking a medical leave of absence but was told that, if she did not return by a specified date, she would be terminated from employment.

Wescott said that the stated return date was when she needed to have a chest x-ray taken, adding she had a doctor’s note backing her up. She required three more days before returning to work, but she was fired rather than being permitted to add those three days to her medical leave period. She filed a lawsuit because she believed the firing was retaliatory.

Here’s the bottom line. Wrongful termination lawsuits can be costly to practices in time, money and practice reputation, even if the case is dismissed. When the practice loses the case, the effects can be even more devastating.

Losing a Constructive Dismissal Lawsuit

  If a former employee successfully proves that he or she was forced to quit, you may be court ordered to pay your employee back wages and benefits as well as lost wages and benefits while your ex-employee looks for new employment. There may be compensatory damages awarded for mental distress suffered by the ex-employee – and, in especially significant cases, the former employee may also be awarded punitive damages. The best defense is to put solid policies into place, including but not limited to termination policies, and ensure they are followed. Cultivate an employee-friendly workplace culture that includes a follow-up process when someone resigns from your practice and consult an attorney before firing someone.

 

How #Me Too Affects You, Too

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.

Bad P.R.

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/

Pharmaceutical-Related Dangers for Equines

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

Internet Pharmacies
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.

Illegal medicines
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.
Varying quality
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

FDA-Approval Process
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.
Liability Issues
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
Summary
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