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Risky business: 6 lawsuits waiting to happen

Article

Think you're immune to lawsuits because you don't own the practice? Think again. Protect your hospital--and yourself--from the legal pitfalls in your path with this advice from savvy doctors and lawyers.

Have you ever slipped on a puddle you just didn't see? Was it hidden, or were you just not looking? If you're not paying enough attention, you could miss the warning signs and take a nasty spill right into a lawsuit. Take a look at these common clinic catastrophes and solutions from experts to keep your practice on solid legal footing.

Risky situation No. 1:

Mrs. Smith visits with her Labrador retriever puppy, Sam, a ravenous little fellow who has a perpetual case of the munchies. Mrs. Smith is distraught that Sam's bowels have turned bloody and he has no energy. You suspect poor Sam has hookworms but you're reluctant to tell Mrs. Smith that her best pal may have given her more than his undying love. Would you and the clinic be liable if you didn't educate her on how to protect against zoonoses?

Your liability: "You must discuss the risks a client could face from any disease their pet has or is likely to get," says Karl Salzsieder, DVM, JD, an attorney and consultant with Salzsieder Consulting and Legal Services in Kelso, Wash. If you don't educate clients you could face claims of professional negligence or malpractice, agrees Sarah Babcock, DVM, JD, an attorney and member of Animal and Veterinary Legal Services PLLC.

Can they sue you?

What you can do: You need to clearly explain diseases clients can contract from their pets, Dr. Salzsieder says. He recommends preparing handouts for clients that offer preventive information, including statistics and risks, and that list your sources for the information you provide. Next step: Update the medical record. List the specific handouts you gave clients (or put a copy in the file), and note the date when you provided the materials.

Risky situation No. 2:

Mr. Jones's old Tom, Benny, has done it again. This ferocious feline is hell bent on using up all nine of his lives catting around the neighborhood and tangling with the locals. This time, he's really done a nice job of it too. He needs stitches and antibiotics. But Mr. Jones has become somewhat laid back about Benny's regular war wounds. Would you be liable if you didn't educate Mr. Jones about Benny's risks both if he receives treatment and if he doesn't?

Your liability: "The answer is yes—depending on the level of risk," Dr. Salzsieder says. "In other words, most court cases have said if the risk is common, you need to warn clients. But if the chances are extremely remote, then no." For example, Dr. Salzsieder recalls an Oregon case that centered on a horse that experienced an allergic reaction to penicillin. Research showed that one in 25,000 cases had a chance of allergic reaction. So the risk wasn't common enough to require notice.

What you can do: The veterinarian needs to obtain informed consent or refusal, says Dr. Babcock. "Providing proper informed consent is the best way to avoid a claim of malpractice," she says. "The doctor achieves informed consent through a conversation with the client or with a shared decision-making process. Veterinarians have a legal and ethical duty to obtain proper informed consent or refusal."

During these discussions, you'll assist as the doctor discusses the benefits and risks and any facts or considerations that help clients make educated decisions about their pets' health care. Dr. Babcock recommends using the DR TAP approach when you talk to clients. With this strategy, you include these elements in each conversation:

  • Diagnosis

  • Risks and benefits

  • Treatment options

  • Alternatives

  • Prognosis

It's also a good idea to provide an estimate for each option you offer.

A quick note: Requiring a client to fill out a consent form doesn't necessarily mean you achieved informed consent, although it's a good idea to include a form in your records. "A consent form documents your efforts to provide clients with all the necessary information to make an educated decision and documents that clients understand and accept the risks," Dr. Babcock says.

One way to show that the client participated in the decision is to summarize the important points and ask the client to initial after each bullet point. "In addition to using a consent form, you need to document this discussion in the record," Dr. Babcock says. "You can assist the doctor by helping document both informed consent and refusal from the person with the legal authority to make health decisions for the animal."

Risky situation No. 3:

Ms. Brenda, the busybody, insists on cradling her high-strung Bichon, Babs, whenever she visits for a checkup and dreaded claw clip. Should you let Ms. Brenda restrain her own pet?

Your liability: "A pet in pain will bite anyone—even the owner—and a team member can't always stop it," Dr. Salzsieder says. "So tell clients the risks." And, he says, though they may beg, plead, or insist, it's never a good idea to let clients restrain their own pets.

What you can do: As the expert, the veterinarian is responsible for any injuries that occur in the exam room, according to most courts. It's your job to help the doctor educate clients about the dangers and to dissuade clients from trying to help. If the procedure may be painful, Dr. Salzsieder recommends removing the patient from the exam room. Otherwise the owner may reach out to comfort the pet and be bitten.

"I think any practice that lets clients restrain their pets is nuts," says Karen Felsted, CPA, MS, DVM, CVPM, a consultant with Brakke Consulting in Dallas. "It's not worth the liability. And sometimes the clients' nervousness about a procedure transfers to the pet. Instead say, 'Let me hold Fluffy while the doctor gives the injection, so Fluffy associates the pain with me and not you."

Risky situation No. 4:

A rash of emergencies and a leak during a thunderstorm the night before wreaked havoc on your pristine waiting room. Everyone's pitching in before the morning rush, so you quickly mop up the reception area. The floor isn't exactly dry yet, but it's time to open—you can see the waiting line of wet noses pressed up against the front door. Should you let them in?

Your liability: A wet floor is more risky in a veterinary practice than in most places, says Dr. Salzsieder. When pets bounce, jump, scoot, and generally get underfoot, it's easy to see how accidents may occur. And when a client slips and falls in your reception area, the clinic may be at risk for a lawsuit, depending on the circumstances.

For example, if a client slipped on a wet floor and sprained her ankle, Dr. Babcock says, the clinic's potential liability would depend on several factors. Was the practice negligent? What is the practice owner's responsibility toward clients visiting the practice? And did clients know and assume a risk when they entered the practice?

What you can do: It's a good idea to take an extra minute and quickly try to dry the floor with towels, Dr. Salzsieder says. And you must post a sign that cautions pet owners about a wet floor, even if it looks mostly dry.

Risky situation No. 5:

Mrs. Kennedy calls and says her cat Binky isn't feeling well. This garbage gut is turning his nose up at tuna—his favorite—and he's even stopped chasing his tail. Mrs. Kennedy hedges when you suggest scheduling an appointment. She presses for a diagnosis over the phone. Would you get in trouble for offering her some quick advice?

Your liability: "I've heard about several practices that ran into trouble when a staff member who wasn't medically trained tried to be helpful and offered a suggestion, like giving a limping cat Tylenol—which is deadly," Dr. Felsted says.

What you should do: You're in a tough position—you know there will be a fee if the client brings her pet in, and you want to help. But Dr. Felsted says the best response is a kind but firm one. "Simply say, 'There's no way of telling what's wrong over the phone, and I'm not a doctor. It's really important that a doctor examine your pet and talk to you about the possibilities,'" she says.

"Always err on the side of caution and suggest bringing the pet in or ask the doctor before giving any type of advice," Dr. Felsted says.

Risky situation No. 6:

Mr. Daniels brings in his aptly named mixed-breed pooch, Killer, for vaccinations. The reception area is full and Killer is looking panicky. Is the practice responsible if Killer nibbles on a client?

Your liability: As with the slip-and-fall case, Dr. Babcock says your risk will depend on the situation. If you know the dog is prone to biting, you could be liable. However, if you have no knowledge of the pet's behavior, she says it's more likely that the courts would find that you couldn't predict or prevent the dog from biting, and the practice may not be at fault.

What you should do: If you suspect Killer may bite, ask Mr. Daniels to wait outside with his dog or find an empty room for them to wait in.

Admittedly, there's no shortage of pitfalls to watch for. But when you spend a little time looking ahead, you'll be able to identify most of the pebbles that could trip you up—before they become boulders in your path.

Katherine Bontrager is a freelance writer in Prairie Village, Kan. Please send questions or comments to firstline@advanstar.com.

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