Who protects you from the consumer?
Peer review system could help stymie legal actions; get involved
Run, don't walk to add "save your license" insurance to your existing insurance coverage.
The American Veterinary Medical Association Professional Liability InsuranceTrust (AVMA-PLIT) now offers an endorsement to our policies called, "VeterinaryLicense Defense." With the belief that this is but the "tip ofthe iceberg," many issues are now coming before your Board of Examinersfor which we, the practitioners, have no protection.
Your conventional AVMA liability insurance policy does not protect orcover legal expenses associated with the licensing boards. If that doesnot seem too scary, think again.
In many situations, the local board can investigate a complaint againstyou and then bill you for all expenses incurred during that investigation.This holds true for unfounded, frivolous complaints and investigations thatcan begin by disgruntled, mean and some just plain evil clients.
We might find some solace in the concept that we are "innocent untilproven guilty;" however, don't get too comfortable. That concept mightbe an illusion with "administrative law" proceedings.
The local board is generally there to enforce your state's VeterinaryPractice Act. But what happens when the local board assumes the role ofconsumer advocate? You, yes you, get to spend perhaps tens of thousandsof your own dollars to deflect the "wrongful charges." And, againassuming "innocent until proven guilty," when a board beginsmaking decisions from the position of "consumer advocate," wefind that many of the constitutional rights that we hold so dear, are buriedunder a pile of insulation that protects these governing boards, while,practically speaking, deny you your rights to due process, while permittingfraud, capricious and arbitrary rulings that fall outside of the state laws.Are you thinking that this is a bit far fetched? Well, think again.
In simple form, legislatures have delegated power and set up "boards"to govern medical doctors, attorneys, veterinarians and such.
These groups operate under what is known as "administrative law"meaning that these groups function outside of the civil and criminal lawcodes that most of us can relate to and understand. Yet, as medicine andthe issues facing most of these "boards" have gotten more sophisticated,some, perhaps many boards, have undated their policies and procedures totake into account the new complexity of these various, assorted issues.And these largely free-standing "committees" might be so financiallystrung out that they must find veterinarians guilty to administer finesand additional fees to balance their budgets. You think this is justice?Well, think again.
Over the last couple of years this author has presented data and articlesin DVM Newsmagazine addressing current limitations of the current system.
Specifically, the "good ole boy" system of appointing political"friends" and assuring that the boards are gender neutral, minoritybalanced and consumer sensitive endorses the "socially correct"appointment system. Some may think that this system is adequate to addressthe "standard of practice" in our community, but think again.
One can only imagine that a group of "socially correct" appointeesmight understand the uses, limitations and the indications for ultrasound,endoscopy, respirators, oxygen therapy, critical care management, analgesiccontrols, acid base balances, intermixing and mingling of complex drug protocols.Just what does a socially correct board have in common with such emergingspecialty practices of orthopedics, internal medicine, critical care andophthalmology? Answer: Nothing.
In many situations, the human medical profession has advanced the processby appointing a review committee of specialist lawyers and specialist medicaldoctors to review, investigate and pass along prudent judgments before thecourt or a "socially correct" board even gets to see a case.
This screening process in legal and medical doctor cases, dumps the multitude,say 90 percent, of all claims into the dumpster as 90 percent of all claimsbrought against folks, in any profession, are against "personalities."
We all know a Dr. Kindheart, who is a butcher, and Dr. Good who has oneof those personalities that we have come to know as a "lightening rod."In the overall picture these days, unless a complaint is filed against Dr.Kindheart, the butchery will continue, but Dr. Good, the lightening rod,will get to spend time and money in defense against frivolous false chargesand standing up for the good medicine that is practiced in his practice.
In the medical profession there is a review committee to filter out thesefrivolous, false charges; veterinary boards generally do not have this filter.
Even so, in human medicine one of the leading reasons good medical doctorsare leaving the profession is the capricious filing of complaints againstthem. And with the similar current trend in veterinary medicine, veterinarianswill begin leaving in droves if their constitutional rights to fair trial,due process, a trial by "real peers" (not politicians) and financialpenalties levied against perpetrators of arbitrary rulings and frivolouslegal proceedings are not assured.
Now all this is well and good, except the serious flaws in this currentsystem might lead to some of the following types of hypothetical situations:
* Can you imagine an investigation of an orthopedic case of anopen compound fracture in which the board tries to rule that, the standardof care, the KE apparatus, is "inappropriate"?
* Or can you imagine that in an investigation of an equine anesthesiacase, the board would hire an expert witness who testifies that the "standardof practice" in the United States is that halothane gas anesthesiain the horse is "malpractice?"
* Or can you imaging that a board would hold a veterinarian culpablefor the adverse outcome when the client failed to follow any of six weeksworth of meticulously written home care instructions.
* Or, how about this . . . can you imagine that when a clientrefuses to euthanize a horse she knows is dying and suffering, that, ina chattel state where the veterinarian cannot destroy another's personalproperty, a board would hold that veterinarian culpable for the direct sufferingthat the failure to euthanize caused?
* Or how about if the board's own investigator provides false,inaccurate lies and incorrect data to the board and their experts? And theboard proceeds anyway to try a veterinarian knowing that the data was flawedfrom the beginning, as they have "expenses to recover."
n Or that the board and its attorneys decide to try a veterinarian for"wrongdoing" because that individual has a personality conflictwith the board's attorney and a member of the board.
* Or how about a board that allows a veterinarian "off"when that veterinarian uses, on a critically ill cat undergoing an abdominalprocedure for a tumor removal, only Telazol - no catheter, no fluids, nocritical care drugs, no heating pad, no endotracheal tube, no pulse oximeter,no electrocardiogram, no nothing, only Telazol. But the board instead attacksa veterinarian who recommended ultrasound to confirm the diagnosis of anabdominal mass and stood by the decision to use gas anesthesia, endotrachealtubes, catheters, heating pads and an intensive care unit to preoxygenatethe cat.
* Or, consider this: A client is clearly dishonest about the medicalhistory of a patient in order to induce a veterinarian to perform a surgery.Complications arise due to the falsehoods and the misleading information.However, the local board holds the veterinarian liable for the consequenceswhile becoming the advocate for the dishonest client.
* Or how about this: A university professor writes a letter tothe veterinarian who referred a case. The university professor's letteris seriously inaccurate and portrays events other than what really happened,and the board, knowing this, finds against the referring veterinarian fornot knowing what should have been in the letter.
* Or how about when an unstable client makes wild, crazy and unsubstantiatedaccusations against a veterinarian and, while there is much documentationof her unstable nature, the board overrules a number of experts who defendthe veterinarian and rules against the veterinarian.
* Or, a veterinarian and a client knowingly conducted presurgeryconferences to determine precisely the needs and the desires of the clientand set a specific and documented plan into action. The board does notconsider, in fact hides the fact, that the conferences took place, and findsagainst the veterinarian. Such a ruling seemingly would deny a valid doctor-clientrelationship determination of the selection of the desired level of carebased upon the veterinarian's comfort zone and the client's right to determinethe level of care desired in a chattel state.
Preposterous or not?
Certainly nobody would believe these previous preposterous illustrations,but the issue is this: They could happen and there is so much insulationaround these boards that it is nearly impossible to challenge their fraudulent,capricious and arbitrary rulings without a big bankroll or the need to borrowtrainloads of money to fight the "establishment."
The good news is that the above preposterous rulings would fall underthe issues for: fraud, operating outside of the law, capricious and arbitraryrulings.
Such board violations can also permit a defending veterinarian to suefor damages.
But the reality is that a clear set of checks and balances does not existin administrative law. So when an outlaw person or two seek and get politicallyappointed to a board, attention to duty, truth and justice might not spurtheir motivation.
We pick up the newspaper every day and see premeditated acts of evil.We also see folks on death row who shouldn't be there. We see real rapists,but we also see folks who served 19 years in prison for a rape that theydid not commit.
In our own towns and offices we see similar acts of evil directed towardinnocent folks. And many false convictions take place in the civil and criminallaw system because of wrongdoing on the part of the witnesses, the investigatorsand the prosecutors, all the while operating under the constitutionallysecure civil rights to due process and such.
But, occasionally, these unscrupulous people find their way onto theseboards. And ladies and gentlemen, problems are popping up that we, as practitioners,have little protection against because of often biased, "administrativelaw" processes.
The good news is that we know that the huge majority of individuals whoserve in these governing capacities are conscientious in discharging theirduties. And thank goodness because the "good ole boy system" thatis currently in place worked nicely 20 years ago, but clearly updating isneeded to address the multiple and complex issues of 2003.
The name of the first veterinary policy that provided the professionlegal funds to fight the local veterinary board of examiners was calledSave Your License.
And now, the AVMA PLIT has a policy that, for $49 per year, provides$25,000 for practicing veterinarians to protect themselves against legalactivities of your local board.
The mere fact that these policies are out there says something aboutthe state of the affairs in the legal tangle governing our profession.
Here is what to do to protect yourself:
Get that $49 dollars in the mail to the AVMA-PLIT and begin the processof "leveling the playing field" with your local board.
For equine practitioners, if your local board hires an expert witnesswho says that the "standard of practice has it that halothane use inhorse anesthesia is malpractice," quit practicing and do somethingelse. A board that would do such a dastardly deed will hang you out forjust about anything.
In your daily practice, increase conference times with clients, keepmeticulous medical records, document all consultations and references thatyou look up, and send all tricky clients and cases down the road to someoneelse.
If your local board has the nickname, "Gestapo," meaning thatthey have assumed the aggressive role as "consumer advocate,"specifically not limiting their duties to enforcing the local VeterinaryPractice Act, get involved with your local veterinary medical associationat the state and national level to look at the activities of your localboard to see which civil and criminal law statutes they might be violatingand to implement change in the processing of client claims against veterinarians.
Get involved with the American Association of Equine Practitioners, American Animal Hospital Association and AVMA to help set up a "minimumstandard of practice set of guidelines" for all of us to consider,especially your local board.
The failure of the veterinary profession to get involved in this issueleaves us all hanging in the wind as, by and large, and pragmatically, thecurrent system does not have checks and balances in place to protect yourrights, livelihood and peace of mind for doing a good job in your dailypractice.
Next month: A discussion on just what is the standard of practice, whois making that determination and what can be done about this issue.