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Veterinary Forum October 2008 (Vol 25, No 10)

Business Skills — Sue you!

by Peter Weinstein

    Editor's Note: In this column, Dr. Weinstein gives some practical information on how to avoid lawsuits. The legal profession is always looking for additional income streams, and here are some basic tactics to avoid their attention. — Stephen Fisher, DVM, Column Editor

    The veterinary profession has recently popped up on the legal profession's radar. Whether we are in focus or at the periphery is still to be determined, but we should be doing what we can to deflect their attention.

    Although I am not an attorney, I have many friends who are — some defense attorneys, and others prosecutors. Any legal information detailed here comes from listening, reading and personal experience.

    There are few more emotionally draining experiences than a malpractice claim. As veterinarians, we work hard to develop relationships with clients and their pets, create a caring environment, and teach and train our team to provide both the best care and the best service possible.

    And then, out of the blue, something goes very wrong.

    Everything you have worked so hard to build is questioned, scrutinized, subpoenaed, deposed and exposed. It leaves you feeling unprotected, threatened and anxious.

    When there is an unexpected death of a pet, an argument with a client or an outcome that was not discussed, the possibility of malpractice looms. Communication disconnects are frequently involved, including clients hearing two different stories from staff members, doctors or both.

    Inconsistent recommendations about a patient, especially a critical care patient, can give the client the impression that something is amiss, so when a case is managed by more than one clinician, there needs to be consistency in presentation. Litigation most commonly arises when two or more doctors or staff members are involved.

    The moment a client perceives that something may be wrong, he or she will seek the "whole story." If a client believes that the truth is being withheld, it gives the impression that something was done incorrectly or may have harmed the pet. Hiring an attorney may be the client's next step.

    Remember: A client may decide to file a lawsuit without lodging a complaint with the veterinary state board. It does not matter whether you really are or are not at fault. If the client finds an attorney who is willing to take the case, then you may be sued for malpractice.

    Gathering Information

    When you suspect that you may be the subject of a malpractice suit, it is imperative to call your insurance company, call an attorney and review your medical records.

    Write down everything you remember about the case — but not on the medical record — and have any staff members who were involved write down everything they remember in case that also refreshes their memory about what happened.

    Do not try to handle these complaints on your own, and do not try to settle them by being nice. Either action may be tantamount to admitting guilt and will not avert a lawsuit.

    So don't talk to the client or to the client's attorney, and don't tamper with the medical records.

    Your medical records, including radiographs and laboratory reports, are subject to subpoena, so make sure you have been accurate and thorough in your documentation of the facts of the case, including medical findings and facts and verbatim conversations that were conducted with the client.

    Complete and accurate records may protect your assets. Altered or incomplete records may be considered an effort to conceal or a failure to meet the standard of your practice act. Get the information into the hands of those who are going to help you, and then let them help.

    Preventing lawsuits

    Clear and concise communication among you, your team and the client goes a long way in preventing issues from developing.

    Verbal communication directly to the client when giving bad news is imperative. The doctor must be the one to deliver the news. Empathy, body language and tone of voice also communicate that you care.

    Communicating compassion and concern can help strengthen the trust a client has in you and your practice. From the physical communication of the hospital to the verbal communication of the staff and doctors, communication can either cause or prevent a client from seeking legal action.

    Informed consent and full disclosure about risk from such substances as anesthesia, vaccinations and pain medications also can help maintain trust. Using an informed consent form is important, but the information that is discussed and how it is discussed are even more important. A form alone will not protect you. Client understanding of the risks and options is imperative.

    Changing legal front

    In reality, the impact of a lawsuit or state board complaint may have a financial component and a psychological component. The financial component may be a fine, a financial payment from a lawsuit (usually covered by insurance) or, at worst, suspension or termination of your license. The psychological component may be even greater. You may change the way you practice and become more defensive. You may run more tests, take more time with clients or communicate more, or you may just walk away.

    The changing legal front just reflects the growing importance of pets in our lives. We can't have it both ways. We benefit from the relationship that people have with their pets. However, along with this relationship we find pets that have much more emotional value and, therefore, perceived financial value to owners. The courts have not scratched the surface for emotional damages in cases of veterinary malpractice.

    In many cases, veterinarians are held to the same standard of professional care as physicians. The number and settlements for human malpractice lawsuits are out of control, leading many physicians to leave the profession and malpractice insurance premiums to skyrocket. We need to learn from our medical colleagues and do what is necessary to avoid the same mistakes.

    Even if there is no lawsuit, we will have helped ourselves and our clients by having improved our communication and medical recordkeeping.

    Dr. Weinstein is past president of the California Veterinary Medical Association and former medical director of Veterinary Pet Insurance (VPI). Currently, he is providing practice management consulting through his two companies, P.A.W. Consulting and Veterinary Success Services, and is executive director of the Southern California Veterinary Medical Association.

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