Veterinary Hospital Managers Association Legal Symposium April 3-5, 2009 Atlanta, GA. Veterinary Malpractice Avoidance

Transcription

1 Veterinary Hospital Managers Association Legal Symposium April 3-5, 2009 Atlanta, GA Veterinary Malpractice Avoidance Douglas C. Jack, B.A., LL.B. DISCLAMIER This material is presented for educational purposes only and is not offered as nor intended to be legal advice. Each reader is encouraged to seek qualified legal counsel in his or her own jurisdiction before acting upon any of the concepts contained in this material. COPYRIGHT NOTICE Copyright Notice: 2009 Veterinary Hospital Managers Association, Inc. All rights reserved. No part of this work covered by the publisher s copyright may be reproduced or copied in any form or by any means (graphic, electronic or mechanical, including photocopying, recording, recording taping, or information and retrieval systems) without the written permission of the publisher.

2 Veterinary Hospital Managers Association Legal Symposium April 3-5, 2009 Atlanta, GA Veterinary Malpractice Avoidance Douglas C. Jack, B.A., LL.B. American Veterinary Medical Law Association INTRODUCTION This article will canvass the law of negligence and malpractice in a contemporary veterinary setting and the legal consequences that may arise from the expanded role of the veterinarian in society. In the first part, I will review the general law of negligence and the necessity to obtain informed consent to treatment. In the second part, I will look at the changing role of the veterinarian in society, and discuss the quantification of damages for malpractice. Through the implementation of strict policies relating to these important issues within the hospital, the practitioner and his or her employees may avoid claims arising out of problem cases. THE LAW OF NEGLIGENCE The law of negligence is grounded in the common law of torts, which has as its objective the need to compensate victims of inappropriate conduct. Negligence arises when the practitioner is found to have breached his or her duty of care to a client and the client has suffered damages as a result thereof. It can be assumed that the veterinary practitioner in North America today implicitly holds himself or herself out to have special expertise and skill in veterinary medicine upon which members of the public are entitled to rely. As such, there is no doubt that a duty of care is owed to the public as soon as you make yourself available to perform veterinary treatment. The breach of that duty arises when something goes amiss; a diagnosis is incorrect, a treatment regime is unsuccessful, or some other unanticipated result occurs. Not all problems in veterinary practice constitute negligence. This determination is resolved by finding out whether or not your course of action fell below appropriate standards of care. THE STANDARD OF CARE All veterinary practitioners are obliged to exercise the care, skill, and diligence provided by a reasonable practitioner in similar circumstances. This is the objective test of the standard of care that you must discharge to each and every client in your practice. Your actions will be judged in reference to your colleagues in hypothetical situations in which they would be called upon to exercise care in the same or similar circumstances.

3 PROXIMATE CAUSE In every jurisdiction, the negligence complained of must have caused the damages claimed in order for them to be recovered. Proximate cause is a legal doctrine that dictates that there must be some clear causal connection between the acts complained of and the actual damages that resulted - it is an artificial line drawn to cut off the natural consequences of an act at some point. This concept is made more difficult in cases where two events, the first being the cause of the underlying condition and the second being the act of negligence complained of, occur closely together in time. In these cases it can be argued that the first event may have lead to the same result in any event. Issues of proximate cause are dealt with on a case-by-case basis. THE VETERINARIAN'S ROLE IN SOCIETY The veterinary profession has participated in our society as a health care professional; that is, the profession has been involved in preventive medicine, comparative medicine, food hygiene, control and elimination of zoonotic disease, and other public health issues. The more perplexing issue is the apparent lack of understanding by private veterinary practitioners of their role, responsibilities and obligations in public health concerns. The consumer's increased awareness of apparent benefits of pet-assisted therapy in human health, the move towards preventive veterinary medicine and the intolerance of tainted products from food-producing animals could lead to a much greater role for the veterinary practitioner in the health care sector. The veterinarian will be faced with new legal obligations to owners, employees, nursing home residents and the public generally. In addition, it appears that there has been a societal recognition of the importance of animals in our society which impacts on the management of litigation risk. THE CALCULATION OF DAMAGES Damage awards for veterinary malpractice are either compensatory or punitive in nature. Until recently, the compensatory damages which that when patients were either killed or injured were straightforward. In equine and food-producing animal contexts, the animal has an establishable market value and claims for emotional suffering of owners were not successful; in those cases though, the damages could be significant for a valuable racehorse or a herd of dairy cattle. This has always been the case in a small animal context as well. The general rules dictate that, since animals are, in law, property, the calculation of damages was based on the market value of the animal. THE IMPACT OF THE HUMAN-ANIMAL BOND The most controversial area in the calculation of damages appears to be in a small animal context for the emotional distress of pet owners whose pets have been injured or killed through negligence. The importance of the human/animal bond has been advanced in support for new heads of damages for this distress; damages in a case in Florida in 1964 were contemplated on this basis.

4 In La Porte v. Associated Independents, Inc., the defendant was a corporation engaged in the garbage collection business. The plaintiff was one of the customers of the defendant. One morning, Mrs. La Porte was preparing breakfast, while her miniature dachshund was tethered outside and beyond the reach of her garbage cans. She observed a garbage collector employed by the defendant empty the garbage and then hurl the empty can in the direction of the dog, striking it. The dog was injured and eventually died from its injuries. Having witnessed the incident, the plaintiff became quite distraught to the point of marked hysteria and sought the assistance of her family physician, who later testified that he had been treating Mrs. La Porte for a nervous condition. The court reviewed these facts and indicated that the plaintiff could recover damages for the alleged mental suffering and awarded the plaintiff $2, in compensatory damages and $1, for punitive damages. The defendant then appealed this decision arguing that the plaintiff's ability to be compensated for nervous suffering was improper. The Florida District Court of Appeal held that while the general rule was that in the case of injury or destruction of a companion animal, the market value of the animal should be used to determine the amount of the pecuniary loss. The court then stated the following: "The restriction of the loss of a pet to its intrinsic value in circumstances such as the ones before us is a principle we cannot accept. Without indulging in a discussion of the affinity between 'sentimental value' and 'mental suffering', we feel that the affection that a master has for his dog is a very real thing and that the malicious destruction of the pet provides an element of damage for which the owner should recover, irrespective of the value of the animal because of its special training such as a seeing eye dog or sheep dog." As such, approximately 40 years ago, courts started to give some credence to the human/animal bond and were prepared to award damages to a bereaved owner in certain circumstances. The jurisprudence remains somewhat unsettled in this area; more specifically, some cases have adopted the notion of the human/animal bond while others seem to reject its impact. On balance, it appears that courts will be faced with this issue for a number of years until a definitive body of law develops. The veterinary practitioner must appreciate that as the scientific studies continue to provide results that draw causal links between human health and the continued good health of companion animals, the risk and exposure of greater damage awards is a reality in negligence cases. It will, in my view, become increasingly difficult to argue that the appropriate damage award is restricted to the value of the animal; as a result, veterinary malpractice insurers will require the payment of higher premiums to reflect the increased exposure. In addition, litigation involving pet owners will likely increase as greater damage awards will be at stake. STATUTORY EVOLUTION There is clear evidence that the human/animal bond is now the subject of statutory recognition in various forms: municipal ordinances relating to animal control issues in both San Francisco and Boulder have been amended in recent years to change the words animal owners to animal

5 guardians - with respect, I suggest that the term guardian has a distinctly different connotation than that of owner suggesting a level of care is required because of the dependency of the animal. As well, the States of Maryland and Tennessee have each placed bills before their respective state legislatures to limit the damage awards that might be made available by a court to an animal owner nat relatively nominal amounts. In Oregon, a bill introduced in the state legislature, but defeated, would have limited the damages to substantial $250,000 for non-economic losses. As such, I respectfully suggest that this represents further evidence of the recognition of the importance of animals to their owners and, indeed, the influence of the human/animal bond. As the status of companion animals is society is enhanced, so to will be the claims made against their caregivers in the future. The prudent practitioner will implement strategic avoidance strategies in the clinic in order to effectively manage this increased risk. MALPRACTICE AVOIDANCE STRATEGIES Few attorneys would disagree with the notion that the very best way in which to effectively deal with a claim for veterinary malpractice is to have avoided the problem in the first place. Certainly, avoidance of the claim is the best management strategy to employ. In this regard, hospital managers should adopt the Three C s of Malpractice Avoidance : competence, communication and compassion. If your clinic adopts these principles then it is likely that you will be successful in avoiding most claims that might otherwise be brought. Competence As you know, in order for the client to be successful in a claim, the client must demonstrate that the conduct of the veterinarian fell below an accepted reasonable standard of practice. To this end, by adopting management decisions that ensure competency through participation in continuing education courses and seminars (for both professional and lay staff), ensuring that the veterinary equipment is in proper working order and generally ensuring that professional services are performed in a prudent manner will assist in avoiding claims. Communication Its clear from my experience that most client concerns are rooted in poor communications. By adopting improved communication, both written and oral, with clients many claims will be avoided. Compassion Finally, when something goes gravely wrong in the clinic resulting in the death or further injury of an animal, it is critical that both practitioners and office staff demonstrate an appropriate level of sincere compassion for the emotional state of the animal s owner. Certainly, previouslyaccepted notions of not apologizing for fear that it would be interpreted as an admission of liability are no longer finding favour. A genuine expression of remorse and saying I m sorry for

6 the way you re feeling, will go a long way to avoiding claims against the clinic, its owners and the practitioners involved.