Seven 'risky moments' that scream malpractice


Sometimes it seems as though the clinical practice of veterinary medicine is a perpetual manifestation of the timeworn expression "no good deed goes unpunished."

Sometimes it seems as though the clinical practice of veterinary medicine is a perpetual manifestation of the timeworn expression "no good deed goes unpunished."

While as practitioners we strive to be competent, thorough and completely upfront about the risks and costs of the work we do, we are becoming targets of fault-finding more commonly than ever.

In an effort to help clinical veterinarians avoid misunderstandings and potential malpractice allegations, this month I am offering a laundry list of in-office "moments" which are particularly prone to lead to legal problems.

Let's walk through the steps involved in a typical small animal surgical admission and identify the highest risk points as it proceeds.

1. Hurried history taking and/or record review.

Many times, new graduates are worried that their lack of experience will lead them down the road to a malpractice case. Though it may not be any consolation to them, extensive experience can pose its own danger. Experienced veterinarians can fall into a trap of making assumptions based on sketchy history-taking and cursory record review, especially when they are rushed. While many kidney failure cases or dietary indiscretion cases may appear similar, an overlooked history item can yield an incorrect or delayed diagnosis. Legally and medically, the time to discover an important history item or previous antibiotic reaction is before the patient languished in the hospital for several days as an undiagnosed or improperly treated mystery.

2. Acceding to a client demand to restrain an unpredictable animal.

Let's face it-some clients are obnoxious and overbearing and always want to have "their way." If an animal is presented for examination for any reason, and you don't trust the animal (aggressiveness) or the owner (lack of commitment to proper restraint), you must insist that a technician restrain the animal. As hard as it may be, resist the owner's insistence upon doing the restraint herself. Ignore the client's digs. The client may say: "Your boss, Dr. Jones, is always able to treat Fluffy while I hold her." Ignore the foolish statements that would be only marginally appropriate in a pediatrician's office. Example: "I won't let anyone else hold my baby while his blood is drawn."

Instead, imagine yourself in court after mom spends two weeks in the hospital being treated for a bite-induced septicemia.

3. Failure to explain the potential seriousness of the items on your rule-out list.

No one wants to worry a client unnecessarily, but sometimes clients have to be upset. Clinical signs observed in the office visit frequently lead to a number of alternative potential diagnoses. Some of those rule-outs may carry a good prognosis, and some may bring with them a rapidly deteriorating hospital stay followed by death or euthanasia. If your list includes even a hint of potential serious problems, clients need to know at admission. If the admitting doctor only mentions the most likely and benign differentials, or glosses over the serious ones, clients frequently will not hear the potential bad news. When the case turns bad later on, clients may not even remember the passing reference to possible serious illness. Clients sometimes subsequently hold the veterinarian accountable for turning what was expected to be a short hospital stay into a terrible illness or fatal outcome.

4. Neglecting to provide a detailed and realistic estimate.

Don't go soft or be overly optimistic in preparing your admission estimate. If the initial blood work doesn't reveal the precise problem, and you have to go back to the client with hat in hand for a coagulation panel, autoimmune series or other items not included in the original quote, the client could well become agitated. If the case goes sour and the animal eventually dies or has to be euthanized, the client may interpret the failure to anticipate the additional diagnostics as a sign of incompetence.

5. Failure to offer immediate diagnostics and treatment in potentially serious cases.

When do serious vomiting and life-threatening respiratory cases walk in your door? Most often, 30 minutes before closing or any time on Christmas Eve. The urge to send a client home with medication and a watch-and-wait instruction can be powerful. It can also turn into a serious legal problem.

Naturally, we know that clients can call us in on emergency if an unexpectedly serious problem develops, or they may have access to an emergency center. However, if the client believes that you harmed the patient by delaying therapy for your own convenience, she may become vengeful. Better policy is to offer an immediate full work up with blood work and radiographs if you have any inclination that a serious problem exists. As mentioned, the client needs to know the full anticipated cost of the work. At that point, the client can make the decision as to whether she is prepared to have you hospitalize the pet or keep an eye on his progress at home.

6. Neglecting to offer referral (and to document the offer).

If a case is unfolding in such a way that you are becoming increasingly uncomfortable in its management, bring up the issue of referral early. If you wait until the patient is on death's door, or you wait until you have performed hundreds of dollars in exotic diagnostic work, two things can potentially happen:

  • The client may have used up the money he or she would have otherwise spent on a referral.

  • Or the client may accept the belated referral only to perceive that you wasted his funds initially and delayed a correct diagnosis. A reasonably early offer of referral to a specialist can be a service to a client, and its documentation in the record is protective for the general practitioner. More often than not, the client will decline the referral, and you will proceed to a successful diagnosis with the confidence that you offered your client a specialist's input.

7. Failure to detail the potential risks of anesthetic and surgery.

In this area, we need to take a cue from human surgeons. If you go to your internist, and he tells you that you have an inguinal hernia, you don't go directly to the hospital to get it repaired. Instead, you go to visit the surgeon and pay him to look at the problem again and confirm that it is, indeed, a hernia just like the last 1,000 hernias he examined.

The truth is, you are at the surgical consult 5 percent for the exam and 95 percent for the surgeon to explain the surgical technique, the pain to be anticipated and the risks of the repair procedure. Human surgeons need to make sure that you hear about nerve paralysis, hemorrhage, DIC, fatal septicemia and every other unlikely, but plausible, complication, including death.

To protect him or herself, a veterinarian needs to explain these issues as well, and to have clients sign a detailed consent form acknowledging their understanding of those complications. This helps the client recognize that he must accept the risks of uncertainty and unanticipated consequences. Our profession does not guarantee results, and clients need to sign on the dotted line certifying that they understand this.

Dr. Allen is a partner in Associates in Veterinary Law, P.C., a law practice specializing in business and legal counsel for veterinarians and their families. He can be reached at or call (607) 648-6113.

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