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Compendium March 2011 (Vol 33, No 3)

In Practice—Veterinary Practices, Negligence, and Malpractice: A New Frontier

    VHMA’s 2011 Legal Symposium Speaker Weighs In on Issues to Consider

    Veterinary managers have had a positive financial impact on veterinary practices in recent years. Although many veterinary managers originally started as part-time employees with a single mandate to “manage the staff ” or “do the bookwork,” their responsibilities have become more diverse, and their roles in the veterinary practice have evolved to become much broader and more sophisticated. With greater responsibility comes the requirement that managers increase their knowledge about all aspects of the business. One area in which veterinary practices’ exposure is increasing is negligence and malpractice. Douglas Jack, BA, LLB, recently reviewed some of the key medical malpractice issues confronting veterinary practices.

    Jack operates a law practice in Fergus, Ontario, Canada, dedicated to the law as it relates to veterinary medicine. He is a charter and founding member of the American Veterinary Medical Law Association and the only Canadian to have served as its president. He is also a member of the Ontario Veterinary Medical Association, the American Animal Hospital Association, and the Veterinary Hospital Managers Association. Jack teaches veterinary jurisprudence at the Ontario Veterinary College, the Atlantic Veterinary College, the Western College of Veterinary Medicine, and the College of Veterinary Medicine at the University of Calgary. He is the author of two books and numerous published articles on the legal aspects of veterinary practice management. At the Veterinary Hospital Managers Association’s (VHMA’s) 2011 Legal Symposium, scheduled for April 2–3 in Chicago and offering 13 continuing education credits, Jack will lead a session titled Avoiding Veterinary Malpractice Claims.

    Interview With Douglas Jack, BA, LLB

    Q: Why should veterinary managers be concerned with veterinary malpractice issues?

    A: Recently, many veterinary practitioners have started using adjectives such as "demanding," "assertive," "knowledgeable," and "forceful" to describe common characteristics of their clients. The consumer age has brought with it a client base that is ready and willing to assert its legal rights. In some cases, our laws have made the court system more accessible for clients to pursue legal remedies if they feel that the veterinarian has acted inappropriately in the care of their companion animal or in the management of herd health.

    Q: Is it common to have lawsuits brought against veterinary professionals for professional negligence?

    A: Relative to other professions, few actions have been brought against veterinarians for professional negligence; however, the profession is under increasing scrutiny and is becoming subject to much greater accountability than in the past. In the small animal context, the growing importance of research into the human–animal bond creates deeper legal pitfalls for the practitioner. In a large animal context, the absolute need for completely safe food products has created new avenues for liability related to the transmission of parasitic disease.

    Q: How does the law of negligence play into malpractice claims in the veterinary field?

    A: The law of negligence is intended to compensate victims of inappropriate conduct. Negligence arises when the practitioner is found to have breached his or her duty of care to a client and the client has suffered damages as a result of this breach.

    In North America, veterinary practitioners are assumed to have special expertise and skills in veterinary medicine upon which the public relies. The practitioner has a duty to the public as soon as he or she makes him- or herself available to perform veterinary treatment. The duty is considered breached when something goes amiss: a diagnosis is incorrect, a treatment regimen is unsuccessful, or some other unanticipated result occurs.

    Not all problems in veterinary practice constitute negligence. This determination is resolved by determining whether the course of action fell below appropriate standards of care.

    Q: What is considered the appropriate standard of care for veterinary professionals?

    A: All veterinary practitioners are obliged to exercise the care, skill, and diligence provided by a reasonable practitioner in similar circumstances. This is the objective test of the standard of care that a professional must show to each and every client. Actions are judged in reference to colleagues in hypothetical situations in which they would be called on to exercise care in the same or similar circumstances. Commonly, the objective standard against which actions will be judged involves a review of the circumstances of the practice relative to similar practices in the area.

    Q: Does the standard of care differ by region?

    A: There has been much discussion in legal circles as to whether there is a difference between the standard of care to be exhibited by a rural practitioner versus an urban practitioner. The debate has never been addressed in a veterinary context.

    Q: If a breach of the standard of care is alleged, can the aggrieved party collect damages?

    A: In every jurisdiction, the alleged negligence must have caused the damages claimed in order for a client to recover. Proximate cause is a legal doctrine that dictates that there must be some clear causal connection between the acts complained of and the actual damages that resulted—it is an artificial line drawn to cut off the natural consequences of an act at some point. This concept is made more difficult in cases where two events—the first being the cause of the underlying condition and the second being the act of negligence complained of—occur closely together in time. In these cases, it can be argued that the first event may have led to the same result regardless of the second.

    Q: How is proximate cause determined?

    A: Issues of proximate cause are dealt with on a case-by-case basis.

    Q: If a party alleges negligence, what happens next?

    A: In virtually every case alleging veterinary malpractice, it is necessary to provide evidence from experts in the field to determine whether the standard of care has been breached and whether the damages fall outside the area of proximate cause.

    Q: How are damages calculated?

    A: Damage awards for veterinary malpractice are either compensatory or punitive in nature. Compensatory damages are awarded when an animal is killed or injured and are based on its established market value. Historically, the general rules have dictated that since animals are, in law, property, the calculation of damages is based on the market value of the animal.

    Punitive damages are rarely awarded, except if the conduct of the practitioner has been particularly distasteful or malicious. In the United States, one court has indicated that punitive damages could only be awarded where the conduct of the practitioner was evidenced by “an evil hand guided by an evil mind.”

    Q: What about the issue of emotional distress when a pet is lost?

    A: The most controversial area in the calculation of damages appears to be in the small animal context; specifically, emotional distress suffered by pet owners whose pets have been injured or lost as the result of negligence. Almost 40 years ago, courts started to give credence to the human–animal bond and were prepared to award damages to bereaved owners in certain circumstances.

    The veterinary practitioner must appreciate that as scientific studies continue to provide results that draw causal links between human health and the continued good health of companion animals, the risk and exposure of greater damage awards are a reality in negligence cases. It will, in my view, become increasingly difficult to argue that the appropriate damage award is restricted to the value of the animal; as a result, veterinary malpractice insurers will require the payment of higher premiums to reflect the increased exposure. In addition, litigation involving pet owners will likely increase as damage awards become greater.

    Q: It appears that the way in which courts view damages is/will be tied to how the pet’s family/owner is recognized under the law?

    A: There is clear evidence that the human–animal bond is now the subject of statutory recognition in various forms: municipal ordinances relating to animal control issues in San Francisco and Boulder, Colorado, have been amended in recent years to change the words “animal owners” to “animal guardians.” The term “guardian” has a distinctly different connotation than that of “owner,” suggesting that a level of care is required because of the dependency of the animal. The states of Maryland, Tennessee, and Oregon have each placed bills before their respective state legislatures to limit the damage awards that might be made available by a court to an animal owner. In the Oregon bill, the amount of damages is proposed to be limited to $250,000 for noneconomic losses. These actions suggest wider acceptance and recognition of the importance of animals to their owners and, indeed, the influence of the human–animal bond.

    Q: These are very complex issues, and they suggest that the legal obligations of those involved in veterinary practices will be subjected to greater scrutiny and stricter liability in the future.

    A: Veterinary professionals participate in our society as health care professionals. With this health care role comes legal exposure for malpractice, heightening the need for veterinary professionals to practice preventively. Those who are associated with a veterinary practice must make every effort to understand their roles, responsibilities, and obligations.

    Q:What can veterinary managers do to familiarize themselves with the legal issues related to malpractice?

    A: Because the law is fluid, veterinary practice managers should resolve to keep current with the laws related to malpractice. Seminars such as VHMA’s 2011 Legal Symposium are helpful because they offer a concise overview of developments and changes in the field. Seminars of this nature focus on the issues that are most relevant to practice managers. Given hectic schedules and job responsibilities, these seminars are one of the best ways to remain informed. The VHMA seminar is designed to provide practical information that practice mangers can apply the minute they leave the meeting. Participants can earn a total of 13 continuing education credits during this 2-day symposium.

    For more information, or to register for the 2011 VHMA Legal Symposium, visit www.vhma.org.

    NEXT: Streptococcus equi subspecies equi Infection (Strangles) in Horses [CE]

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