The American Society for the Prevention of Cruelty to Animals (ASPCA) National Outreach department estimates that there are anywhere from 4-6000 animal shelters in the United States. [1] While veterinarians who work in the animal shelter environment face the same legal issues as general practitioners who provide their services in private practice, some areas of the law are more likely to impact how shelter veterinarians practice veterinary medicine as compared to their general practitioner colleagues. Working with shelters provides veterinarians with an opportunity to have a huge impact on the quality of life for these homeless animals. Veterinarians who choose to work or volunteer in shelters must be aware of the elements of the veterinary practice act and other legal requirements that apply to shelters, including OSHA, DEA, animal cruelty laws etc. Veterinarians should also seek indemnification for the services they provide.
There is no federal regulation of animal shelters; only a few states have guidelines or laws governing how they operate. Therefore veterinarians may be the best advocates for assuring quality care is provided. The range of activities undertaken by shelters today, regardless of whether they have animal control contracts or not, almost demand involvement from veterinarians in order to be successful, yet in most cases there is no requirement for shelters to employ or consult with veterinarians in their day to day operations. 1 Shelter veterinarians often are employed by organizations formed for purposes that are generally ancillary to the private practice setting. These purposes include “adopting out” animals to the public, educating owners about the responsibilities of pet ownership, investigating suspected rabies and animal bite cases, handling abandoned animals, providing behavior consultations to new pet owners, investigating animal cruelty cases and instituting animal population control programs, which, in each case, may give rise to challenging legal dilemmas for shelter facilities. What follows are some of the areas more likely to generate legal concerns.
I. Pet Adoption
Prior to adopting out animals, shelters and shelter veterinarians should take reasonable measures to ensure that animals put up for adoption are free from zoonotic diseases[1] and behavioral problems which could potentially result in human injury. Since medicine and animal behavior are imperfect sciences, shelters and their veterinarians cannot guarantee that adopted pets will not pose dangers to their human companions. Although shelters do their best to assess animal disposition and adopt out animals that are free of parasitic diseases, shelters should be prepared to share the blame when children are bitten or lose their sight to ocular larval migrans.
In a New Haven case, a child lost his vision due to ocular toxocariasis and his parents sued the pet shop that had sold the child’s puppy.[2] Although the pet shop ended up settling the case for $1.5 million, if the case had gone to trial the court would likely have addressed the issue of the pet shop’s alleged negligence in “failing to deworm the puppy, failing to have any deworming program in place, and failing to keep appropriate records.”[3] Although the defendant in this case was a pet shop, the analogy to the animal shelter context is clear. Shelters, like pet stores, are likely to be held responsible for protecting a naïve public from diagnosable, zoonotic diseases that are common in young and homeless animals.
Another liability issue for shelter veterinarians is assessing the vicious or dangerous nature of animals, especially dogs, before they are adopted out. In a Tennessee case, a woman was killed by her neighbor’s two pit bulls that, several months earlier, her city animal shelter had determined were not “vicious.”[4] Betty Lou Stidham lived next door to two pit bulls that had on numerous occasions’ bitten people. When one of these dogs attacked her small dog so that her dog had to have a leg amputated, Ms Stidham filed a “vicious animal complaint” with the city shelter. The shelter then impounded the dogs for evaluation and conducted a “vicious animal hearing.” During that hearing, the shelter found that the dogs did not appear to have a “vicious nature” towards humans or animals and thus were not vicious. However, the shelter did classify the dogs as “dangerous” because of their “capability to inflict serious injury,”[5] and thus ordered their owner to repair the fencing around the property and enroll the dogs in obedience classes. The difference between the classifications “vicious” and “dangerous” in this case was that a classification as “vicious” would require the dogs to be impounded, while “dangerous” required only that certain steps be taken by the owner to minimize the dogs’ risk to others.
Adopting legally defensible policies and screening techniques reduces such risks by ensuring that adopting owners are able and willing to properly care for their new pet. (Appendix A) [6] Shelters also may inquire as part of the assessment of prospective owners as to the type of environment to which a pet will be exposed. Such inquiries reduce the possibility of pets being returned to the shelter because they did not “fit in” with the family. Examples are a young, large, happy and rambunctious dog adopted into a family that lives in a high-rise apartment or a timid and potentially fearful cat adopted into a house full of active children.
II. Confidentiality of Medical Records
While veterinarians have a clear ethical obligation to maintain the confidentiality of their clients’ and patients’ medical records, [7] only a few states (namely Pennsylvania, New York, Georgia, Missouri, Kansas, Texas and Illinois) have laws, usually in the veterinary practice act, which require veterinarians to maintain client confidentiality. This legal obligation does have exceptions however, and some states permit veterinarians to reveal confidential information for the purpose of protecting the public health or the health and welfare of the patient.
Shelter veterinarians face a difficult dilemma since, unlike their private practitioner colleagues, as many of the animals they treat are strays, either because the owners cannot be located or are unidentifiable. Local and state laws dictate when the ownership of strays or abandoned animals is transferred to shelters, and once shelters are deemed to have ownership rights in the animals they shelter, no duty of confidentiality is owed to the former owner. However, after the animal has been adopted, any medical information generated from the care of the animal would remain confidential in those states that impose a legal duty.
Therefore, in this hypothetical example, if Dr. Shelter treated a puppy, “Sammy” for tape worms after Mrs. Smith adopted the puppy and “Sammy” was later acquired by a second owner, Mr. Jack, then Mr. Jack would not be entitled to the information pertaining to “Sammy’s” treatment without Mrs. Smith’s authorization. However, if Mr. Jack had been bitten by “Sammy”, Dr. Shelter would have to provide “Sammy’s” rabies vaccination history if Dr. Shelter is in a state that waives the duty of confidentiality for the purpose of protecting the public health.
III. Malpractice Claims
Generally, shelter veterinarians are subject to the same malpractice claims as private practitioners and must therefore exercise the same standards of care as are expected of reasonably prudent veterinarians under similar circumstances.[8] Examples of specific liabilities that most often concern shelter veterinarians include, the transmission of zoonotic diseases to humans, rabies exposure issues[9], anesthetic deaths of adopted animals scheduled to be neutered, and human injury due to the adoption of animals with behavioral problems.
It is advisable that within their agreements with the shelters at which they work, the veterinarian should be indemnified (ie, have their damages paid for by the shelter). An example of indemnification language would be:
EmployER will ……. indemnify and hold harmless Employee, …… from and against each claim, damage, liability, loss and/or expense, …. whether based in tort, contract, equity, otherwise; including any claim before any court, agency, board or other body or entity having jurisdiction over veterinarians . . . based upon, resulting from, or by reason of the performance of Employee’s veterinary services in connection with her employment by Employer….
A release of liability from the shelter provides additional protection from the Employer suing the shelter veterinarian. Such language would read as follows:
EmployER hereby irrevocably and completely forever:
(i) releases, remise and discharges, . . . to irrevocably and completely forever release, remise and discharge Employee…from each Loss (as defined in Indemnification); and
(ii) waives, … any and all rights, claims, remedies, privileges and benefits whatsoever … that is inconsistent with the foregoing. Employer hereby agrees both for itself and for each other Releasing Party that the foregoing release and waiver will remain in full force and effect regardless of any Agency’s determination …
IV. Expert Witness
Due to their involvement with the admittance and treatment of abused and neglected animals, shelter veterinarians are often asked to provide expert testimony in animal cruelty cases. While veterinarians receive no formal training on how to draft reports, answer interrogatories, or prepare for an appearance in court, serving as an expert witness is an important role which shelter veterinarians should be prepared to assume. Without such experts to assist prosecutors in enforcing animal cruelty statutes, many perpetrators would be acquitted and left free to continue abusing animals.
In addition to the challenges of learning to be an effective expert witness[10], shelter veterinarians often are concerned with being sued for defaming[11] an individual charged with animal cruelty. Unfortunately these suits do arise, but it should be comforting for veterinarians to know that such allegations are usually very difficult to prove and the truth is their best defense! So as not to use personal funds to defend themselves against allegations of defamation, shelter veterinarians should not agree to be experts until they have determined who will pay their legal fees in the event they are sued. Generally, shelters employing such veterinarians can agree to pay for the veterinarian’s defense or insurance can be purchased from a medical malpractice carrier, such as the AVMA-PLIT. Moreover, some states protect veterinarians by forbidding claims brought against veterinarians on the basis of their involvement in such a case. For example, Florida law states that veterinarians will not be held civilly or criminally liable for “decisions made or services rendered” under the state’s cruelty to animals statute. It further clarifies this statement by asserting “[s]uch a veterinarian is, therefore…immune from a lawsuit for his or her part in an investigation of cruelty to animals.”[12]
V. Permissible Acts of Shelter Staff
Since many shelters are set up as non-profit organizations and therefore are supported through generous but often limited donations, many are unable to hire “in-house” veterinarians. As a result, many shelters consult or use the services of local private practitioners and have their non-veterinary personnel provide care to shelter animals. Private practitioners consulting or working with shelters must consider what forms of care they feel comfortable supervising or delegating to the shelter’s non-veterinary staff while abiding by the guidelines imposed by state law concerning acts that must solely be performed by veterinarians. Generally, these include diagnosing, operating, treating or prescribing for any animal disease, pain or other physical condition.[13]
VI. Controlled Substances
As one of the main functions of shelters is to euthanize unadoptable animals, and few are “no-kill” facilities, shelters use large amounts of euthanasia solution, such as Pentobarbital. The purchase and delivery of these “controlled substances ” is regulated by the Drug Enforcement Agency, a federal agency formed to guard against the misuse of dangerous substances, and in addition, each state has its own laws to regulate the use of these drugs.
Some state laws take into account the fact that euthanasia is an integral part of shelter life, and create unique provisions for the use of controlled substances specifically in shelters as opposed to the private practice setting. State laws also may be more flexible regarding the purchase of euthanasia drugs for shelter use. Whereas state law generally only allows veterinarians to purchase controlled substances, some states permit animal shelters to register as “separate entities,” qualified to purchase euthanasia drugs even without a veterinarian on staff. Where a state requires individual practitioners to order and keep track of euthanasia solution in the shelter, thereby holding veterinarians solely responsible for the use of such drugs, it is essential for veterinarians to implement detailed guidelines for the staff to follow.
If an animal shelter is unable to obtain its own DEA license, it is dependent on veterinarians to purchase controlled substances for use at the shelter. When a veterinarian decides to leave the shelter, both federal Drug Enforcement Agency regulations and state law must be followed in order to ensure the proper transfer of controlled substances from one licensed party to another. The veterinarian who purchased these drugs will be held accountable and must take responsibility for them when he leaves. If a new veterinarian is already at the shelter (or another responsible party with a DEA license), there should be a clear transfer of the controlled substances to that other party–the departing veterinarian should leave the responsible person with an inventory of all controlled substances purchased under the departing veterinarian’s DEA registration.
VII. Rabies Vaccination Clinics
In order to reduce the public health risks associated with Rabies, municipalities frequently host “Rabies Clinics” which provide low cost vaccinations to cats and dogs owned by members of the community. Such clinics are held at shelter facilities or public places such as fire houses and large parking lots. Shelter veterinarians and private practitioners often donate their time and administer vaccines to what is frequently a large volume of dogs and cats.
Though there are a number of liability issues that arise in this context, there are certain requirements that are standard in most state laws governing vaccination clinics. Firstly, though it is impossible to do a complete physical examination on each of these patients, most states, such as New York, require that the administering veterinarian perform physical exams to determine whether the pets are sufficiently healthy to tolerate the vaccinations.[14] Additionally, owners must complete an information sheet before seeing the doctor, with such requisite information as their name, address, phone number, pet’s name, age, species, sex, color, breed and weight. (Appendix B) Thereafter, the veterinarian must fill in the rabies certificate for each patient, including the date of vaccination and the expiration date of the vaccine.
Some states, like Maine, have limited the liability by adopting laws that provide immunity for veterinarians working in the rabies clinic setting so that if injury or death to the animal does occur, the veterinarian is not held responsible.[15] These provisions, however, are not universal and do not protect veterinarians in cases of gross negligence or willful misconduct, or where the veterinarian’s behavior falls below standards generally practiced by other veterinarians in like circumstances.[16]
VIII. Liability for Euthanasia
Most shelters cannot find homes for all the animals they admit and are therefore permitted by state law to euthanize unadopted animals, including pets that have been lost by their owners. Such laws are necessary to keep shelters functioning, as they experience a large influx of animals and need to maintain a continuous supply of cages. Before such animals can be euthanized, the laws of most states require that animals be held for a given waiting period to allow sufficient time for owners to locate their pets. This period, ranging anywhere from four to eight days, is often long enough for pets that can be identified, either with a collar, tattoo or microchip, to be reunited with their owners.
A negligence claim may arise when an animal is euthanized before the holding period is up and the owner comes in within the prescribed period to find the animal already gone. Especially in today’s litigious climate, where the loss of a pet can invoke damages for loss of consortium and infliction of emotional distress, euthanizing an animal before the holding period has expired must be avoided. Shelters can implement policies to minimize such risks by requiring their staff and veterinarians to check several times that an animal has been at the shelter for the requisite time period, before performing any euthanasia.
Conclusion
Shelter veterinarians have a unique relationship with the animals they treat and the owners that adopt these animals, and therefore they frequently are faced with legal dilemmas that they may not otherwise encounter as private practitioners. There are, of course, many other legal issues that challenge shelters and shelter veterinarians on a daily basis, but this chapter is meant to guide shelter veterinarians in combination with their own common sense and caution; clearly there is not one answer that will apply to all situations. Additionally, this chapter should not serve as legal advice, and shelter veterinarians should seek the direction of their state veterinary board as well as legal counsel, as needed, to determine the appropriate course of action in any particular situation.
References:
Shelter Medicine for Veterinarians and Staff. Edited by Lila Miller and Stephen Zawistowski. 2004 Blackwell Publishing. To order call 1-800-862-6657
[1] Excerpts from the book, Shelter Medicine for Veterinarians and Staff. Lila Miller and Ed Zawistowski (Blackwell Publishing 2004)
[1]. Wilson, James F., et al., “Zoonotic Parasitic Diseases: A Legal And Medical Update.” Veterinary Forum, January 1996, pp. 40-46.
[2]. Id.
[3]. Id.
[4]. Chase v. City of Memphis, 1998 Tenn. LEXIS 435.
[5]. Id.
[6]. Wilson, J. F., Lacroix, C.A., Legal Consent Forms For Veterinary Practices. (Yardley: Priority Press Ltd., 1995)
[7]. Principles of Veterinary Medical Ethics of The American Veterinary Medical Association, Principle VII. Medical Records, (1999 Revision)
[8]. Wilson, James F. , Professional Liability, Law and Ethics of the Veterinary Profession (Yardley: Priority Press Ltd., 1990), pp. 131-174.
[9]. “Public Veterinary Medicine: Public Health, Compendium of Animal Rabies Prevention and Control, 2000.” Journal of the American Veterinary Medical Association, February 1, 2000 (Vol. 216, No. 3) pp. 338-343.
[10]. Wilson, James F. , The Veterinarian as an Expert Witness, Law and Ethics of the Veterinary Profession. (Yardley: Priority Press Ltd., 1990), pp. 284-293.
[11]. Wilson, James F. , Libel and Slander, Law and Ethics of the Veterinary Profession (Yardley: Priority Press Ltd., 1990), pp. 166-170.
[12]. Florida Statute § 828.12(3) (2001).
[13]. California Business and Professions Code § 4826 (b), (c), (d) (2001); New York Consolidated Laws, Education Law, Title 8, Article 135 § 6701.
[14]. New York Regulations, Veterinary Standards of Practice, NY Reg § 638.620.
[15]. Maine Revised Statutes, Title 7, Part 9, Chapter 720, § 39.17 (2001) (janus.state.me.us/legis/statutes/7/title7sec3917).
[16]. Texas Health and Safety Code § 826.047, (www.capitol.state.tx.us/); Pennsylvania Code § 455.9a(a).
