TAKE HOME MESSAGE:
Dealing with client complaints promptly is imperative, and some errors do not escape the scrutiny of the law. Be on top of those errors to protect your practice and license.
INTRODUCTION:
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.
SOLUTION:
Document patient care as it is provided and communicate well with clients. If contacted by a client’s attorney or state board, seek guidance from your insurance carrier or counsel and respond to the attorney or state board appropriately and in a timely manner.
RESULTS:
Being accused of malpractice can be a disconcerting experience for any veterinarian. These allegations can come in the form of a civil lawsuit 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. The best defense lies in communicating well with clients and documenting patient care appropriately, 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.
DISCUSSION:
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 also a bad thing, however, because it is not clear as to what is and what is not the standard of practice. For this reason, the authors of this manuscript have compiled a set of veterinary care standards. We believe that it is better to articulate these standards and publish them within and for the industry 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 to 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 and 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 from a disgruntled client’s attorney can be very distressing, causing veterinarians to respond impulsively and not always in their best interests. This can especially be the case with veterinarians who have never been named in a lawsuit or reprimanded by a regulatory agency before. It is therefore important to become knowledgeable about the processes by which state boards and the courts adjudicate such allegations. The following scenario illustrates an example of civil lawsuit proceedings as well as regulatory actions.
In 2014, Carlo Vaccarezza contacted Dr. Vincent Baker to provide veterinary services for his horse, Little Alexis, while she was preparing to run in the Breeders’ Cup. He provided the horse with routine vitamins and therapeutics during the weeks before the race. Two days before the race, he gave Little Alexis an approved anti-inflammatory, electrolytes, and vitamins through a catheter in the left jugular vein.
The following morning, the groom noticed that the horse was off her feed, had a noticeable bump where the catheter had been, and had an elevated temperature. When contacted, Dr. Baker came out and provided approved treatments on the right side of the neck and drew blood. He recommended that the groom keep Little Alexis’s head elevated and to provide hot and cold compresses on the bump. Notably, Vaccarezza later said that he was unaware of the blood draw.
When Dr. Baker picked up the blood tests, Little Alexis had an elevated white blood cell count with the SAA test showing a highly elevated level of 2,534. Dr. Baker said that he’d called Vaccarezza about the results, but the owner didn’t answer the phone. Dr. Baker didn’t leave a voice mail, send a text message, or tell anyone else about the results.
On race day, Little Alexis had a normal temperature and appetite, and the neck bump was smaller. Vaccarezza still worried about her condition and wondered if he should scratch her from the race, but Dr. Baker said she was fine to run. She finished ninth out of ten. In 2015, Vaccarezza sold Little Alexis for $440,000, down from a $1.5 million appraisal in 2014.
Late in 2015, Vaccarezza sued Dr. Baker for medical negligence. Vaccarezza claimed that he had never known about the blood tests being taken—much less the results—saying that this fell short of professional veterinary standards of care. An equine veterinarian who testified on Vaccarezza’s behalf said that he had never heard of an SAA test that reached 2,534 and that, by itself, should have caused Dr. Baker to recommend that Vaccarezza scratch the horse from the race. He said that running it put Little Alexis at significant risk.
Another veterinarian testified that the left side vein where the catheter had been placed was occluded and was “like a hard rope” with blood not able to flow properly through the vein. An expert suggested that thrombosis could have blocked the jugular vein, preventing the blood from the horse’s left side from getting back to the heart.
A jury ultimately awarded Vaccarezza more than $1.5 million in damages and interest. The foreperson later said that the jury was swayed by the argument that Dr. Baker had not lived up to the appropriate standard of care by not sharing the blood test results with Vaccarezza.
In August 2023, the California Veterinary Medical Board put Dr. Baker on probation after he had been accused of dangerous drug use on at least forty race horses over a period of four and a half years. According to state paperwork, he “prescribed, dispensed or administered a drug, medication, appliance, application or treatment to animal patients without performing an examination and forming a diagnosis of any condition that required treatment.”
Although this is a more extreme case, it shares how one civil lawsuit in 2015 and regulatory actions in 2023 came about. It also demonstrates the importance of documentation and communication.
Overview of Equine Cases
According to AVMA Trust-sponsored PLIT data, equine practitioners receive an average of 3,500 to 4,000 potential or actual malpractice claims annually. About five percent of them contain equine-specific situations. When looking at the total of annual claims, equine ones represent the smallest percentage but are more likely to end up in litigation than with other animal classes because of the higher value of horse patients. The most common category for equine claims is pre-purchase exams with additional categories include consent and miscommunication issues, rectal tears, and complications associated with anesthesia, sedation, and castration.
California provides data from their Veterinary Medical Board from 2017 to 2019. During that time period, 2,685 new complaints arrived. By looking at the number of active veterinary licenses (38,807), this means that one in nearly 6.9 veterinarians received a complaint during that three-year time frame. None of these, however, were connected to horses; this appears to be the period right before the cluster of complaints made about Dr. Baker in 2023.
Statistics and case studies can provide valuable context but, for a veterinarian, what matters most is how to respond to allegations to protect themselves and their practices most effectively.
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 their recollection of the events in chronological order.
In Dr. Baker’s case, he would need to review what he gave to Little Alexis, for example, or Medina Spirit to corroborate his recollection of the events. Unfortunately, in the case of Little Alexis, he had not sent a text message or otherwise informed any other person about his actions. We don’t know what he notated in his records.
Most veterinarians will find that writing down the events that led to the complaint from their perspective is helpful because it will refresh their memories, help them to develop a consistent “story” as to what happened, and provide a draft from which to develop a written response.
To not compromise their defense in a lawsuit, veterinarians should also immediately contact their professional liability insurance carrier and ask for advice. If they even have reason to suspect that a client is likely to pursue legal action, they should contact their insurance carrier. Insurance carriers may differ in how they handle negligence actions, but they 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 dealing with a letter from the state board, the veterinarian should be aware that they will most likely be defending their conduct at their 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 a veterinarian may respond on their own, it is usually advisable to obtain legal advice as to how to respond to the allegation(s) and, at the very least, have an attorney review their letter. In drafting his response, they 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, it can be helpful to consult with other veterinarians to determine how they would handle a similar situation. This will assist them in determining whether they acted within the standard of care and provide an indication as to their liability.
Negligence
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 they 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 that “[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 solely rely upon 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 can be 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. Dr. Baker did agree to see Little Alexis when Carlo Vaccarezza made that request.
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. It is at this stage that expert witnesses are hired to testify as to what is the standard in the case at issue. In the case of Little Alexis, other veterinarians looked at the left jugular vein hardness and the SAA test results.
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. With Dr. Baker, both the jury and California’s regulatory board found that his actions caused harm. If the time between veterinary actions taken and the unwellness of the horse was longer, it would be more difficult to prove the proximity.
Damages: Even after they have proved negligence, clients must also establish that they suffered harm resulting from such negligence. Since animals are considered 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—which Vaccarezza proved by sharing the appraised value drop in a year’s time. In general, 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. Plus, because equine-related cases deal with animals of higher value, the fair market value can be considerable.
Responding to Client Complaints
Veterinarians can often 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:
- Listen to the client.
- Clients who have complaints are often angry and need the opportunity to vent.
- 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.
- Do not interrupt the clients since this will only anger them further and likely interfere with a clear understanding of the facts.
- Remain calm and objective.
- 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.
- 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.
- Communicate, communicate, communicate.
- 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.
- 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.
- 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.
- Show sympathy and concern.
- Clients whose animals have died are often emotionally distraught and, under certain circumstances, may seek to blame someone, sometimes their veterinarian, for their animal’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 the death.
- 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.
- Coach the staff.
- Staff members can help to diffuse client complaints and should be coached in what to do and say, if anything, when a client complains.
- 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.
- Do not admit fault or offer a settlement.
- 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.”
- 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 resolve a dispute amicably and expeditiously 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, veterinarians will spend a lot of time, effort, and money defending themselves in court and before the state board.
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.
ACKNOWLEDGMENTS:
Declaration of Ethics:
The author has adhered to the Principles of Veterinary Medical Ethics of the AVMA.
Conflict of Interest:
The author has no conflicts of interest.
REFERENCES:
[1] The T.J. Hooper [60 F.2d 737 (2d Cir. 1932)]
