Don't make me defend you
"Bad things happen. Animals die. Surgeries don't go as planned," says Bonnie Lutz, JD, an associate with Klinedinst Attorneys at Law in Orange County, Calif. "But that's not why veterinarians get sued."
"CLIENTS SEEK LEGAL ACTION because of a lack of trust," says Bonnie Lutz, JD, an associate with Klinedinst Attorneys at Law in Orange County, Calif. "The specific action they focus on really doesn't matter. The bottom line is you broke the client's trust somehow. And that's why you've got a veterinary malpractice suit or a complaint to the veterinary malpractice board on your hands."
Bonnie Lutz, JD
Board complaints are more common than lawsuits, says Lutz, for two reasons: 1) Hiring an attorney is expensive, damages are minimal because in most states the courts see pets as property, and the client has to pay out of pocket. 2) The client doesn't want to sue in small claims court because it's too personal—they don't usually want to confront the doctor.
"The major thing that gets veterinarians in trouble with the board is lack of trust resulting from a lack of communication," says Lutz. She points to two areas where communication often breaks down: doctor-to-client communication and doctor-to-doctor communication.
Dr. Tom Vaughan, dean emeritus at Auburn University in Auburn, Ala., agrees that communication breakdowns are the most common reason for liability issues. "Haste, impatience, insensitivity, arrogance, condescension, and reliance on indirect communication such as e-mail, third parties, and answering services, can all get in the way of communication," Dr. Vaughan says. "But nothing scrambles communication more than ego."
Success strategies: Identifying potential problem areas
When doctors and staff forget to be people-people and instead act like pet-people, problems arise, says Dr. Vaughan. "Unconfirmed messages, assumptions, no follow-ups, surprises about bills, differences between prognosis and outcome, and bad news being broken last instead of first is an indication of a problem."
Double-check that you're not interrupting conversations, finishing sentences, or substituting others' thoughts instead of listening, Dr. Vaughan says. It's key that clients feel you understand their concerns and respect them and their animals.
Make sure you're interacting with both pets and people. And use these communication strategies to minimize your liability.
- Make sure informed consent is actually informed. "Veterinarians like to teach scientific things, but informed consent doesn't mean telling clients the scientific details," says Lutz. "You need to give them the information they need to make a good decision." (For more, see "Achieving Informed Consent".)
Get it right: Achieving informed consent
- Record everything. "Veterinary medical boards will nail a veterinarian for records that aren't legible, or have missing or incomplete information," Lutz says. And it's critical, she says, to note the date and time of the pre-procedure informed consent. The best approach: Have the client sign a form or even initial in the record that you went over everything with him or her.
Once the procedure is over, even without a bad outcome, record that you went through the after-care information with the client, and have the client initial or sign to document the exchange of information.
Tough situations: Managing threats and demands
"Records won't prevent you from getting sued," says Lutz, "but they make great evidence if you are." She says not to change anything in a record without initialing and indicating the change. "It's OK if you wake up during the night and think of something you need to include. You can put it in the next day, initialed with the date. It's not OK to make any changes later on that aren't clearly marked or to add to the record during a lawsuit," she says.
- Common sense isn't so common. "Sometimes doctors will overlook instructions or after-care information because they think it's common sense," Lutz says. But these things may not be obvious to a client, and if the client overlooks an important after-care step that you never discussed, you can be liable.
- Make sure the doctor who did the procedure is there when the client picks up the pet. "Clients like to hear the information straight from the veterinarian," she says.
- If something bad happens, communicate with the client immediately. "The minute you avoid or put off a conversation with a client, you break the trust," says Lutz. "Clients think, 'Well, my animal died and the doctor can't even take 20 minutes to tell me what happened.' Or worse, the doctor takes an inordinate amount of time and nobody informs the clients."
Problems are more likely to arise on a day when a doctor is scheduled for back-to-back surgeries, says Lutz, because he or she will move from one case to the next and might not even know that the patient from a prior surgery didn't come out of the anesthetic. As soon as a technician realizes an animal is deceased, he or she needs to notify the doctor and the doctor needs to take the time to contact the client.
Helpful hints: Who sues?
- Deliver bad news yourself. "Often doctors don't know what to say, so they'll hand off giving clients bad news to a technician, a spouse that works in the hospital, or a practice manager," says Lutz. "That just sets up the mistrust."
- Don't forgo care you feel is necessary to accommodate a client. "Veterinarians are too willing to not do a procedure or to not push a procedure they think is necessary because a client says he or she can't pay for it," says Lutz. "Keep in mind clients hear what they want to hear. So if you say you need to do A, B, and C, and the client asks if he can just do A, and you agree to try A and work from there, and the pet dies, suddenly you said the pet would be OK with just A.
"You can reduce liability simply by being less willing to cut corners," says Lutz. "Of course, this is a touchy issue for doctors because you don't want the client to leave and not get any treatment for the pet."
Another example: Suppose clients refuse to agree to pre-anesthetic blood work or other precautions, saying they were already performed at the emergency clinic that week and he or she won't pay you $500 to do it again. If you go ahead and do the procedure without it and something goes wrong that you would've found by doing the blood work, you have a problem. "Suddenly the client wants hundreds of thousands of dollars for a pet that he or she wasn't willing to pay $500 for," says Lutz.
Doctor-doctor communication breeches
Problems in communication between veterinarians are the second reason clients lose trust in their doctor, says Lutz. Consider this: The doctor has to hand off a chart because he or she won't be in the practice after a surgery or procedure. "Sometimes lawsuits take place because a perfectly good veterinarian did a procedure and left for a few days and never had the discussion with the veterinarian who would follow through with the case," she says. "A new doctor comes into the scene and says something completely different to the client. At this point, clients start to wonder who to trust and who's lying to them."
For example, says Lutz, let's say Dr. Smith is treating a very old, sick pet with palliative care and pain medication, and its liver is failing so he puts it on fluid treatment. Then Dr. Smith takes the day off and the animal has a crisis. So the client takes the same pet to Dr. Jones, a very young, very talented, just-out-of-school associate, who tells the client that Dr. Smith was treating the pet incorrectly and that there are new things she's learned in veterinary school that can help this pet. The client starts to think, "Why didn't Dr. Smith think of this?"
Well, he did think about it. But the pet also had some other condition that made him discard that idea. If the doctors had taken the time to get on the same page, the client wouldn't have lost trust.
No matter how hard you try, the case won't go your way every time. But if you establish strong relationships and maintain good communication with your colleagues and clients, you narrow your liability gaps. Ideally this means you'll never be looking for the right lawyer to defend you.