Veterinary medical errors: Think before you speak

There is both anecdotal and documentary evidence that shows healthcare providers are inclined to admit mistakes and oversights rather than cover them up. Perhaps that's why doctors and veterinarians are considered more trustworthy than lawyers and politicians. Absent any protective legislation barring the use of apologies in the courtroom, practitioner apologies to patients and their families do two things:

1. Significantly reduce the number of malpractice lawsuits against doctors who apologize

2. Tend to harm the defense of doctors who apologize but against whom malpractice cases are filed regardless of the apology.

Each of us must choose which course to take when we commit—or think we've committed—an error in diagnosis or treatment. Should we stay mum and wait for a lawsuit to be brought against us? Or should we be candid and share our doubts about our actions with a client who might use that information against us?

There are costs and benefits to both routes. And the decision as to whether to be open and hopeful or closed and defensive should be made in advance of an actual mistake. Determine a strategy for damage control before there's damage to control.

Unlike a human hospital, your animal hospital doesn't have a staff of Ivy League attorneys waiting to swoop down from an upstairs office suite to help you make decisions when a medical case goes foul. You pretty much have to choose ahead of time whether you're going to go the apology route or not. And a wrong decision may be tough to fix.

The benefits of an apology

Statistics show that in instances where a medical professional identifies and admits an error in diagnosis or treatment, it reduces the likelihood the patient or his family will sue. That fact comports well with other evidence that any increased contact or empathy a health provider displays with a patient and his family tends to increase the bond and reduce the emotional distance between the two parties. The question remains, though, as to whether an apology to a pet owner for a bad outcome is worth the potential downside.

An apology has to satisfy clients as well as those who influence them

Even a sincere "I'm sorry," which satisfies the client, may not be enough to close the matter in terms of potential litigation. An elderly couple in their 80s may be upset by the death of their poodle, but they may be willing to forgive their truly contrite veterinarian. However, what about their son who's a lawyer or their affluent daughter-in-law?

When we bet on the kindness and understanding of clients to whom we apologize, it's important to remember that the person who makes the final decision to sue may not be the sole decision-maker. Friends and family can be very persuasive. Also remember in the case of a state board complaint, persons other than the aggrieved animal owner may bring malpractice or misconduct to the attention of the authorities, depending on the jurisdiction.

Does a state offer any protection?

Some states have taken note of the effect that apologies by physicians have had on the number of malpractice claims filed against them as a group. As a result, many regions, including California, Florida and Texas, have experimented with legislation intended to shield doctors from the use of their apologies against them in civil litigation. Not all states have such laws and those that do may not provide full protection against entering such apologies into evidence in a lawsuit.

Before you elect to apologize for a clinical decision, approach or course of therapy, check with a qualified local attorney to make certain that any legislation intended to protect human physicians has clearly been interpreted to extend to veterinarians.

Who does a state protective shield law cover?

There are several ways in which a physician apology shield law can provide an umbrella to veterinarians as well. Your attorney should explore these points before giving you the green light to apologize:

1. Specific statutory reference. If the law lists or mentions protective coverage provided to certain types of medical professionals beyond—or in addition to—physicians, you have a pretty good idea whether veterinarians are protected in your state. If veterinarians are listed as a covered group, it's a fair assumption that at least as far as the type of apologies, admissions and acts described and with respect to the judicial venues mentioned in the law, protection is available.

For example, if the law specifically mentions that apologies made by physicians, osteopaths, dentists and veterinarians are covered, you have a good degree of clarity. However, even if the protective law does not mention veterinarians, all is not necessarily lost.

2. Legislative intent. State legislatures and even offices of state governors often issue official documents describing what their purpose was in making legislation or signing a bill into law. These comments are sometimes published as stand-alone documents or listed in the state legislative books as footnotes or comments.While these comments don't always provide clear guidance when a judge is interpreting a statute, they may help a lawyer successfully move to strike evidence such as an apology.

An example of this would be if a physician apology statute were published in the law books of a given state with legislative commentary that says "the goal of the legislature in passing such a statute was to prevent healthcare and other professional practitioners licensed under the laws of this state from being hampered in honestly sharing their thoughts with patients and their families ... " A judge could easily interpret that language to include veterinarians (healthcare professionals) and not architects (though they are licensed professionals).

Specific appellate case law

If an apology shield law has been on the books long enough, it is possible that a judge in some appellate court in some jurisdiction in your state has interpreted the law to cover veterinarians in a case that has come before him or her in the past. If so, that interpretation is binding on courts below that court. If the appeal was to the state's highest court, the interpretation probably binds all state civil trial judges.

Does your shield law protect against both civil cases and board inquiries?

This is the $64,000 question. Do not apologize to anybody for anything in your practice until your lawyer has given you the green light, based on full research of a shield law, that your comments protect you in both civil and administrative venues.

A state apology shield law won't help if it prevents judges and juries from considering those comments as evidence but allows them into evidence in a state licensing board hearing. Remember that a loss in a civil malpractice case can only result in the loss of money. A professional licensing hearing can result in the loss of your ability to earn a living.

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 visit info@veterinarylaw.com.

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