The term “duty of care” refers to the way in which you must interact with your clients and patients in order to satisfy the requirements of the law. For California veterinarians, this amounts to:
Being a competent care provider.
Providing care that is consistent with the current veterinary practice standards.
Since “current” veterinary practice standards are continuously evolving, the duty of care evolves as well.
When a veterinarian fails to meet the required standard of care, he or she may be guilty of “negligence.” In order to establish veterinary negligence, a plaintiff must show that:
The veterinarian had a responsibility to care for the animal (duty of care).
The veterinarian didn’t act in accordance with the appropriate standard of care.
The veterinarian’s failure to provide adequate care was a proximate cause of injury, which means that the injury occurred as a direct result of the action and would not have occurred if the veterinarian had acted appropriately.
1. A client brings her cat Lucy in for her annual shots. An inappropriately high dosage is administered, and the animal dies as a result. In this case, the client can sue for negligence because the veterinarian:
Was responsible for providing care to the animal.
Did not act in accordance with pertinent standards of care.
Was the direct cause of the animal’s death.
2. A client brings his dog Fido in for a checkup. After collecting the necessary information and obtaining consent to treatment, the veterinarian administers an appropriate heartworm prevention medication at the correct dosage. The animal has a severe and highly unusual reaction to the medication. In this case, the veterinarian is not guilty of negligence. Even though the veterinarian’s actions were a cause of the animal’s injuries, he or she was acting in accordance with accepted standards of care, and most other veterinarians would have made the same choices.
The Veterinary Medical Board’s “Cite and Fine” Program was first implemented in 1990 to aid in the processing of complaints made against veterinarians. These guidelines are used to address violations of the law that are not serious enough to warrant criminal prosecution or the suspension or revocation of a veterinarian’s license to practice. In these cases, the VMB issues a citation, and the veterinarian must pay a fine.
Common “Cite and Fine” Issues
Examples of issues that may result in a citation and fine include:
Discipline of license in another state
Animal abuse or cruelty
Failure to keep premises and/or equipment clean and sanitary
Record keeping violations
Record confidentiality violations
Of these issues, one of the most common citations veterinarians encounter is inadequate recordkeeping. This issue can result in a citation on its own, or it can complicate other actions initiated against the practice. In general, the VMB holds to the belief that information not contained in the records cannot be taken as fact. Thus, this issue often acts as a jumping-off point for more extensive disciplinary actions.
For example, assume a client brings action against your practice on the basis that you did not provide competent care to her pet. Even if the client’s story is misleading, embellished or completely inaccurate, you won’t have a leg to stand on if you don’t have detailed records to support your side of the story. The VMB won’t simply take your word as fact if you have no written documents to back up your position. Thus, you may find yourself facing unnecessary penalties simply because you failed to keep adequate records.
David has extensive and broad experiencein the areas of complex civil litigation, with particular emphasis on the representation of residential and commercial property owners in construction-related disputes. David represents homeowners, homeowner associations, developers and contractors in real estate cases, as well as complex construction defect claims involving multiple single-family residences and multi-unit developments.
Ernest James Krtil – Closely Held Companies and Family Business Law
Jim’s depth of experience in his practice emphasizes business law including mergers and acquisitions, nonprofit organization law and taxation, as well as estate planning and probate and trust administration, including trust and estate disputes.
Employment agreements commonly include a provision designating the place or forum where any employment related-claims must be litigated. Ordinarily, the party opposing a forum selection clause has the burden to demonstrate that the clause should not be enforced. However, the burden is reversed when the underlying claims are statutory rights that may not be waived, such as California Labor Code provisions concerning employee compensation. In such cases, the party seeking to enforce the forum selection clause must demonstrate that the forum selection clause will not diminish the statutory rights; otherwise, the clause will not be enforced.
In Verdugo v. Alliantgroup, L.P., 237 Cal.App.4th 141 (2015), the employer was headquartered in Harris County, Texas, and had regional offices in other states, including California. The employer hired an employee to work at its California office, and required her to sign an employment agreement. The employment agreement included a forum selection clause designating Harris County, Texas as the forum for litigation. The employee filed a lawsuit in California based on various provisions of the California Labor Code concerning proper pay, meal and rest breaks, and wage statements that the Legislature declared cannot be waived by private agreement. The employer moved to stay the action based on the forum selection clause. The employer did not demonstrate that Texas would have applied California law, or, that Texas provided the same or greater rights as California. As a result, the California court of appeal did not stay the action and the lawsuit continued in California.
Employers with California employees should review their forum selection clauses because forum selection clauses that violate California’s public policy on employee compensation will not be enforced. Employers desiring to litigate employment related claims outside California should determine the likelihood that the clauses will be enforced. Provisions designating California law as the applicable law (choice of law provision) may make it more likely that the forum selection clause will be enforced, provided that the forum state would enforce the provision and apply California law. Or, employers may just need to consider alternative forums for claims by their California employees.
DID YOU KNOW…
Generally, prevailing parties in civil litigation are entitled to an award of their litigation costs. Not necessarily so with respect to claims under the Fair Employment and Housing Act, or FEHA. In FEHA cases, the California Supreme Court recently ruled that prevailing employees should ordinarily receive their costs (and attorney fees), but prevailing employers should not be awarded costs (or attorney fees) unless “the action was objectively without foundation when brought, or the [employee] continued to litigate after it clearly became so.” Williams v. Chino Valley Independent Fire Dist., 61 Cal.4th 97, 115 (2015).
Medical care continues to evolve given the use of electronic media and communication, and a number of large health care practitioners are turning to telehealth as a method to provide medical care to a greater number of patients who reside in California’s rural communities. Before embarking on a telehealth practice, a practitioner must first be licensed by the Medical Board of California if the care provided involves California residents. If a physician is not licensed in California and provides care to a California resident, the physician has violated California law and could be subject to substantial fines and possible imprisonment.
Telehealth Advancement Act
In addition to the above requirement that the physician must be licensed in California, a telehealth practitioner is subject to the Telehealth Advancement Act, which became effective on September 18, 2004. The Act describes the mode of delivering health care in a system that provides “real-time” interaction via “communication technologies to facilitate the diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care.” Simply interacting via telephone and e-mail is insufficient to constitute providing “telehealth” medical care in accordance with California law.
Conduct an “Appropriate Prior Examination”
Moreover, to the extent that a patient is treated via “telehealth” medical services, a practitioner may prescribe a drug or device after conducting an “appropriate prior examination.” While various commentators have differing opinions of what constitutes “an appropriate prior examination,” it is commonly acknowledged that a physical examination is not the sole method of obtaining “an appropriate prior examination.” Thus, an interactive and sophisticated real-time communication system that has the capability of gathering current and detailed medical information — by way of a medical interview of a patient, allergies and medical history — could suffice as an “appropriate prior examination.” An exchange of random emails that are not detailed enough to constitute “an appropriate prior examination” would not permit a physician to prescribe pharmaceuticals, and could be deemed insufficient to justify providing health care via “telehealth.”
Consequences of Providing Telehealth Services Without an “Appropriate Prior Examination”
If a physician prescribes medication without “an appropriate prior examination,” the prescribing physician is subject to a $25,000 per occurrence fine. Thus, it is imperative that a physician who provides “telehealth”, and then prescribes medication as a result of his or her diagnosis of the patient, complete a thorough and detailed medical examination. While a physical examination is not required to constitute “an appropriate prior examination,” the medical examination that is provided must be detailed, which includes gathering his or her patient’s current medical condition, existing allergies and complete medical history of the patient.
Adherence of the California Medical Practices Act and Appropriate Regulations
Lastly, a telehealth provider must comply with the California Medical Practices Act and appropriate regulations regardless of where the provider is located. Consequently, a provider is required to file an application with the medical board if the provider desires to use a fictitious name. In addition to the physician being licensed in California, a professional medical corporation that provides telehealth services must be incorporated as a California corporation and is subject to California’s prohibition against the lay practice of medicine. Thus, the shareholders of the professional medical corporation are subject to scrutiny and must be designated health care professionals.
Navigating the requirements to become a telehealth provider and provide telehealth services can be challenging. A physician or medical group exploring or attempting to provide telehealth services should consult with an experienced healthcare attorney to ensure compliance with all state and federal regulations pertaining to telehealth services and providers.