Drug abuse poses a load of liability problems

After a recent talk I gave in Las Vegas, a veterinarian came up to the podium and told me she'd been considering applying to law school. She wanted to know more about the experience. That started me thinking about the differences between law school and vet school.

One big shock I got when I started law school was that it's not uncommon to have a single examination for a whole course—a final test covering an entire semester of material. More upsetting was that at my alma mater, the exams were given after the Christmas break, so that students could spend the holiday season panicking instead of reveling.

At any rate, for the pleasure and amusement of the veterinarian/reader, I have framed the topic of this month's column in the form of a typical law school final-exam question:

And ... you may begin the test

Amy is a licensed veterinary technician who works at the New York City veterinary practice belonging to Long Island resident Dr. Bill. The name of the practice is Blackacre Vet Hospital P.C. (All real estate in law school carries the name Blackacre for a reason that is still a mystery to me after 30 years.) Dr. Carl, one of the associate veterinarians, has been stealing a controlled substance from the drug locker for several months.

Don, another technician, is responsible for carrying out a controlled drug inventory each month. Don has felt overworked lately and consequently has fudged the inventory, simply writing numbers on the log to look like the medication was counted. (Coincidentally, Don is a high-school dropout who created his technician credentials on a laser printer.)

Amy, a bright-eyed girl, saw Dr. Carl's drug thefts and once reported them to the owner, Dr. Bill. Bill thinks she's lying because Dr. Carl treats her poorly when he is in a bad mood.

Last week, Dr. Carl, while extremely high on the stolen drugs, seriously injured Eve in an automobile accident. Eve's attorney sues Amy, Bill, Don, Blackacre Vet P.C. and the estate of Dr. Carl (who died in the crash) for negligence. The United States Drug Enforcement Administration begins an investigation as the civil case proceeds.

Student: Write an essay explaining the rights and liability of all the parties, making reference to any applicable statutory law and relevant cases. And would the outcome of the suit against Dr. Carl's estate be different if Dr. Carl's wife were not un undocumented alien from Panama?

Doctors, aren't you pleased you decided to study science instead of law? Well, let's have a peek at this exact fact pattern and the pertinent rights and liabilities associated with drug abuse involving the veterinary workplace.

Danger of drugs at work

Drug theft and abuse are real dangers in the medical workplace. Even huge hospital chains have difficulty managing the behavior of their staffs when it comes to controlled drugs, and they have very sophisticated bar-code tracking systems to monitor product use. Nonetheless, the difficulty of monitoring staff and medication is no defense when a lapse of vigilance results in unaccounted for medication or worse, harm to or death of a person.

In the example scenario above, ultimate liability for the injuries attributable to the controlled substances purchased under Dr. Bill's DEA number resides with Dr. Bill. The medication became available to endanger a member of the public only through Bill's right to order and subsequent failure to reasonably control its disposition. What exactly does "reasonable" control mean? How could it be Dr. Bill's fault that the medication left the building unaccounted for?

Failure to check credentials

While there is no obligation in the law to spot and avoid every fraud perpetrated by another person, there is a requirement to take reasonable care to prevent dangerous errors in this situation. Dr. Bill neglected to do any sort of background check on Don when he was hired. A simple Internet search or phone call to the state licensing authority would have turned up the fake LVT credentials.

The failure of Dr. Bill to identify Don's lack of an LVT license as well as (and more importantly) the fraud carried out by a person who eventually was to be trusted with controlled substances make a great case for actionable negligence. Don't just assume licensed individuals are set to work when they are hired; trust but verify.

There are technicians applying for jobs whose licenses have been revoked. There are veterinarians available for hire who haven't actually taken the boards in the state where they are applying. I know there are docs running around who've let their state licenses lapse and are therefore unqualified to practice. I know because years ago I had one working for me. I have since wised up.

Ignoring employees' drug-abuse warnings

In the fact pattern there are only a couple of innocent parties—and one is Amy. When she reported her concerns regarding the disappearance of drugs to her employer, Bill was duty-bound to carry out at least some type of investigation. If an investigation had turned up a problem, the subsequent allegation of negligence would be far weaker.

If an investigation had turned up no proof because of Don's refusal to admit that he never really counted the pills, the allegation that "reasonable" control had not been exercised would still be weak. The law doesn't require omniscience, only reasonableness. Dr. Bill is not expected to be able to see through lies without some tangible evidence that lies were told.

Controlled drug back-up system

It is best to have a licensed veterinary technician be responsible for controlled drug inventory but not essential. In any event, it is an excellent strategy for the DEA license-holder to either switch medicine-counters periodically, or have a second person periodically monitor the inventory-taking process. In our example, Dr. Bill could have identified the problem of missing drug supplies by simply having Amy re-check Don's work every so often.

In the meantime, has anyone been wondering what effect Dr. Carl's wife's immigration status would have had on the pending personal-injury verdict? Once the DEA arrived on the premises of Blackacre Veterinary P.C. to investigate the disappearance of the controlled drugs, an investigation of both veterinarians, Bill and Carl ensued. They wanted to know whether Carl just liked to use the meds or perhaps had developed a retail outlet.

When the agents checked out Carl's associations, they were especially interested in his widow's foreign accent. Mrs. Carl's illegal status was uncovered immediately and reported to Homeland Security. The estate's ability to defend the personal injury action was dramatically impeded after Mrs. Carl (the executrix named in Carl's will) was deported to Panama. After that, the battle to replace her as executrix and the legal fees to defend the lawsuit ate up all the money in legal fees. The end.

In a few months in this column, I will address another related workplace problem: Use and suspected use of drugs in the workplace itself. The legal issues are myriad, including workers' compensation complications, malpractice and vicarious malpractice allegations, and potentially discriminatory drug-testing policies.

Dr. Allen is president of the Associates in Veterinary Law P.C., which provides legal and consulting services to veterinarians. Call (607) 754-1510 or email info@veterinarylaw.com

For a complete list of articles by Dr. Allen, visit dvm360.com/allen