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Avoiding the Bite of Liability

In the last several issues of California Veterinarian we have undertaken to provide information regarding various legal issues of importance to California veterinary practitioners.  In the July/August and September/October issues of California Veterinarian, we addressed veterinarians’ duties of care with respect to warning pet owners, staff, and third persons about an animal patient’s dangerous propensities and provided suggestions on how veterinarians may discharge any “duty to warn.”  In the November/December issue, we turned to another matter of concern: the duties of a veterinarian in responding to a subpoena served in connection with litigation.  In this article, we address several ancillary issues that have been raised by our prior articles.

Written Warnings
One such issue deals with the nature of a written warning provided by a veterinarian to a pet owner regarding the dangerous propensities of the owner’s animal; specifically, should a veterinarian choose to provide such a written warning, what should be said?

The basic answer is that each veterinarian should use his or her common sense with respect to the specifics of a written warning.  As stated in the September/October article, a veterinarian is ill-advised to provide an overly narrow or vague warning in describing the potential danger posed by the animal at issue.  Warning letters should be written in a clear and understandable manner, and veterinarians, when drafting such letters, should refrain from employing obscure terminology or “in house” verbiage in describing the problem.  Remember, you are writing to a pet owner, not another veterinarian.  The letter should be drafted so that the owner recipient may discern the nature of the warning being given and the general reasons therefor.  Always keep in mind that providing an unintelligible warning is little better than providing no warning at all.

There is nothing wrong with maintaining a form letter for general use in cases where you believe a warning is necessary.  However, make sure that any such letter is flexible enough to allow inclusion, if appropriate, of a discussion regarding the specific facts and circumstances of the animal at issue.  Like use of a letter that is difficult to understand, rote use of an unchanging form letter may be of little value to the recipient owner.

In short, think of how you would want to receive communications from a professional in a field that you do not fully understand.  Just as you would not want an attorney to explain a situation to you using “legalese,” do not cloud the message you are trying to send by resorting to the drafting of letters that are overly technical and/or incomprehensible.

Another issue that has been raised is whether and when a particular animal patient should be referred to a veterinary behaviorist.  Is such a referral required by the relevant standard of care?

Frankly, the issue is so uncultivated that it is doubtful that the veterinary standard of care (at least in the warning context) currently requires referrals of animals that exhibit dangerous propensities to a veterinary behaviorist.  The field of veterinary behavioral medicine is itself an emerging specialty, and there are only a handful of certified Veterinary Behaviorists in the State of California.  By contrast, there are many non-licensed individuals (such as animal trainers and the like) operating in this area.  To whom must a referral be given?  Moreover, while one might argue that a referral may in some cases be demanded by veterinary standards of care in order to properly render full and complete treatment to the animal itself (in order to combat the behavior problem), a referral would not appear to be a component of the duty to warn an owner of the animal’s dangerous propensities, so long as the owner is otherwise adequately apprised of the animal’s tendencies.

Prescribing Medications
Another issue related to the duty to warn arises when the veterinarian decides to prescribe medications to combat an animal’s behavioral problems.  As you know, when a prescription is given, the veterinarian provides full instructions regarding the use and effect of the drug(s) at issue.  Specifically, the veterinarian instructs the owner that the prescribed medication should not be relied upon to completely erase the danger posed by the animal to the owner and others.  Certainly, it is part and parcel of the duty to warn to provide complete disclosure of what a prescribed drug can and cannot do.  Veterinarians should not provide owners with a false sense of security regarding a dangerous pet, and should make clear that while the medication is designed to reduce the danger posed by an animal, it is still up to the owner to minimize the opportunity of the animal to cause injury to the owner and others.  A veterinarian who fails to give such cautionary instructions is walking into a potential minefield of liability.

Insurance Issues
Another issue that is germane to the matters discussed in the previous several articles is the adequacy of your insurance coverage.  Veterinarians should obviously strive to avoid situations out of which liability may arise by, among other things, providing the types of disclosures previously discussed.  However, when these proactive steps fail, it is important to have the appropriate amount and type of insurance in place to best discharge any judgments entered against you.

So, exactly what type and how much insurance should one carry?  There are no simple answers, because there are no “one size fits all” solutions for every type of practice.  Your individual specialty, type of practice (companion, mixed, equine, or exotic), form of business entity (sole proprietorship, corporation, partnership, et cetera) and exposure to the general public will dictate what types and limits of coverage you need.  Further, the value of your business and personal assets and your comfort with risk will likely be factors to be considered.

A lawsuit can originate from a number of acts, incidents or accidents.  Depending upon the circumstances, each might fall under a different form of liability insurance policy.  For veterinarians, the three most common arenas from which suits arise include:

a)    Lawsuits originating from professional negligence, referred to as malpractice.  This term includes alleged errors and omissions or mistakes committed in or arising out of the practice of veterinary medicine.

b)    Lawsuits regarding incidents arising out of the ownership of a premises or business operation.  Examples include trips, slips, falls, animal bites or other injuries to the public or guests while on the premises.

c)    Lawsuits for injury to a person’s reputation or character.  Such lawsuits include those seeking damages for defamation of character, based on alleged libel (written defamation) or slander (oral defamation).

Should you be charged with malpractice, the issue will often surface as a complaint to the Veterinary Medical Board (“VMB”) prior to any civil lawsuit being filed.  It should be noted that the majority of professional liability insurance policies do not cover and will not respond to an administrative or consumer complaint originating from the state Veterinary Medical Board.  An insurance policy would respond to an ensuing malpractice lawsuit, but not the civil penalties or costs which could be assessed by the VMB.  Accordingly, you may wish to procure a policy or an endorsement to a policy that provides at least the cost of defending against a VMB action.

When an insurance company is notified of a lawsuit, it first investigates the cause or action that created the complaint, injury or damage.  The company then determines the policy and coverage under which the claim would be defended.  In doing so, the company determines if the underlying cause of loss was professional negligence, personal injury or a premises hazard that caused the injured party to seek relief.  If the insurance company elects to deny coverage, it is required to advise you of the denial and the basis of the denial.  If you have question the appropriateness of a denial of coverage, you should seek the assistance of counsel.

Third-party injuries can arise out of professional negligence concurrently with premises ownership.  Take the case of a pet owner who is bitten or scratched while restraining his/her own animal for the veterinarian or the veterinarian’s staff.  In this case, the claim may be defended under the professional liability policy for failure of the veterinarian to warn the owner that even a family pet can become dangerous when stressed or in pain during medical treatment.  However, the same claim may also be defended under the premises liability coverage, simply because the incident “arose out of ownership of” or took place on the property.  Because of these types of claims, it’s an excellent idea to have all liability insurance coverages with a single carrier and, where possible, within the same policy.

Malpractice can also arise from an omission, such as failure to meet a standard of care. This includes failure to warn owners that their animal has behavioral problems which may cause injury to family, friends or the general public.  Similarly, negligence can occur by way of a failure to explain to an owner (and failing to properly document in the patient record) that the medications prescribed to calm a fractious animal might not reduce their inclination to bite or scratch someone.  In this vein, numerous claims have resulted from injuries occurring when an owner loses control of a pet in a veterinary hospital waiting room and it subsequently injures a third party or another animal.  In the case of such a professional omission, the insurance coverage would be afforded by the malpractice policy.  Where the injuries were caused by an incident in the waiting room, the general liability (premises liability) policy for the hospital would typically respond.

So, what limits should you carry?  Consider a clinic that only treats companion animals with relatively low economic value.  Do they need high limits of liability or would $50,000 or $100,000 be adequate?  To answer the question, consider the following: In the typical companion animal clinic (which generally has a low exposure to high valued animals), if the veterinarian fails to recognize or diagnose a rabies case that subsequently exposed members of the public requiring them to undergo treatment, would a plaintiff and his/her attorney necessarily sue for only $100,000?  Likely not.  What if this same veterinarian failed to notify and properly document to an owner that the owner had a dangerous dog and should take extra precautions to protect the public and family members and, subsequently, someone’s child was severely attacked and injured by that animal?  Again, in such a case, you would want very high limits of coverage.

Both of these potential civil cases would undoubtedly be defended under a veterinary professional or general liability policy.  Therefore, it is not unreasonable to carry at least one million dollars of coverage per incident and two million dollars in the aggregate for all claims during the policy term.  Of course, the greater the policy limits, the greater protection you have.  You should also consider the value of your assets that you wish to protect.  For instance, a veterinarian with a substantial portfolio may be more willing to pay premiums for high policy limits than a new veterinarian heavily burdened with student loans

Today, veterinary malpractice insurance is readily available and modestly priced, especially when compared to other medical professionals’ coverage. The cost difference to increase business and professional liability to one million dollars is quite reasonable.  Likewise, with the current legal climate in which veterinarians live and practice, it is highly recommended that they have at least $10,000 of Veterinary Medical Board defense coverage if it is available in their area.

The most important thing to remember when faced with a lawsuit or VMB complaint (or threat of one) is to contact your insurance representatives immediately.  Their job is to counsel you through the incident, advise if a report should be filed with the carrier and provide resources to begin building your defense against any claims or proceedings that may arise. Once you present the facts of the case, the carrier will advise you what course of action to take to minimize your involvement in the claim.

In some cases, an incident occurs which may give rise to the possibility of a future claim. While no lawsuit or threat has been received, the veterinarian has concerns because of the specific facts behind the incident.  If this happens to you, always contact your insurance professional and discuss the circumstances of the situation.  Your representative may complete a report for information purposes only, in which no claim is submitted until such time as a lawsuit is filed.  By doing this, you make sure that preliminary information gathering is obtained by the insuring company in a timely manner and the reporting clauses in the insurance contract have not been compromised.

Anytime you have questions concerning general or professional liability, it is prudent to contact your insurance representatives or your counsel.  They represent you and are thoroughly familiar with lawsuits, so you can freely discuss the issues frankly and openly, and they will be there should the need arise.