Duty to Warn: Related Issues

In the previous issue of California Veterinarian, we began a series of articles which delve into assorted legal matters that are of increasing concern to California veterinary practitioners.  Our first article, “All Bark and May Bite,” outlined relevant law regarding a veterinarian’s duty of care with respect to warning of an animal’s dangerous propensities.  We attempted to provide certain general principles that may be applied in determining whether a duty to warn exists in a given set of circumstances.  As we detailed, very little specific law exists in regards to a veterinarian’s duty to warn of an animal’s dangerous tendencies.  There is even less on the subject of exactly how that duty is discharged vis-à-vis different classes of individuals.

In this issue, we offer suggestions on steps veterinarians can take in order to fulfill relevant duties of care to staff, owners, and third persons.  Keep in mind that it is not our goal to impose hard and fast rules for veterinarians or to delegate universal standards of care on behalf of CVMA.  Rather, the following are to be considered simply as practical tips for limiting potential liability based on an individual’s claim that a veterinarian failed to discharge a duty to warn.

The most important step veterinarians can take to limit potential liability to staff is to adopt and follow clear internal policies with respect to the intake and examination of dangerous animals.   Written policies and good record keeping are the key.  If a veterinarian examines an animal patient whom he or she believes poses a bite or other serious risk to humans, that veterinarian should have in place a defined process for identifying the animal as dangerous.  This process should be followed each and every time such an animal is examined.  For example, in order to prevent injuries to veterinary technicians and other staff, a veterinarian might consider having owners fill out forms for each new animal brought to the veterinarian which seek information regarding the animal’s behavior.  For animals identified as dangerous (either by the owner or veterinarian during examination), veterinarians might consider labeling the pet’s file with a warning such as “handle with care—bite risk” or similar indication in order to put staff on notice of the propensities of the animal.  In instances where a dangerous animal patient is being examined, advance notice should be provided to staff so as to allow them to be aware of the potential danger while in proximity to the animal.  If necessary, physical restraints on dangerous animals, such as muzzles, should be used.

Vigilance for dangerous animals should not end with the veterinarian.  Staff should be encouraged to notify the veterinarian and other staff members in order to better inform each and every person in the office about the potential risk.

Obviously, keeping staff members safe is and should be a top priority for veterinarians.  However, most veterinarians (whether because of staff allegiance, the fact that staff to some extent “assume the risk”, workers’ compensation considerations, or otherwise) are probably less concerned about liability to staff then to animal owners or third persons attacked by animal patients.  As we discussed in the last issue of California Veterinarian, it is unlikely that a veterinarian will be held liable to an animal owner for a failure to warn of the animal’s dangerous propensities where the owner has knowledge of these propensities.  Whether this knowledge is pre-existing or acquired from a treating veterinarian following an examination is immaterial.  Thus, it is important for veterinarians to notify animal owners when there is reason to believe the animal poses a risk.  Although it is never pleasant to inform an owner that his or her animal is dangerous, providing the owner with such information and notification creates a shield against liability to the owner in the event the owner is later injured by the animal.

As one would expect, documentation of warnings provided to owners is well-advised.  There are two ways in which such documentation might be carried out.  First, a veterinarian may simply make a written notation in the animal’s chart that a warning was given to the owner. Second, a veterinarian may also provide an actual written warning to the owner, confirming the warning that was provided in person. (In this regard, note that veterinarians should not substitute such a written warning for one given personally to the owner.  From a public relations perspective, it is important that the warning be communicated orally so that the owner does not feel blindsided by a later-received written warning.)  The advantage of providing written notice to the owner, of course, is that there can be no debate later on about whether and to what extent a warning was given.

One thing to keep in mind with respect to the nature of the warning given to an animal owner is to avoid being unduly narrow or vague in describing the potential danger posed by the animal.  By acting affirmatively to provide a warning, the veterinarian may be assuming a duty to disclose all potential dangers.  Providing a narrow description of the danger posed may be problematic in the event that injury is later caused by an action by the animal that would have been subsumed within a broader “category” of warning.  The owner may be able to argue that while the veterinarian discharged his or her duty with respect to warning of Risk A, the veterinarian failed to warn of Risk B (which was the risk that manifested itself), and was therefore negligent.  Therefore, when in doubt, err on the side of providing a broad, as opposed to narrow, warning regarding the animal’s dangerous propensities.  Similarly, do not minimize the danger posed by the animal in order to soften the blow on the owner or otherwise make the news more palatable.

As was the case with regard to minimizing potential liability to staff, following clear guidelines is also important in the veterinarian/owner context.  Veterinarians should avoid situations where a warning is given to one owner about the danger posed by an animal, but not given to another owner whose animal poses the same or similar danger.  Be consistent in how you handle individual cases.  Adopt written policies defining what tendencies are sufficiently dangerous to require a warning.  Persistent and violent attempts at biting will likely give the veterinarian reason to provide a warning.  For less aggressive (but still dangerous) behavior, veterinarians will have to make judgment calls on whether the particular quantum of animal conduct should generate a warning.  Of course, do not lose touch with common sense.  If an animal shows no dangerous tendencies, do not feel that a warning is necessary just to protect yourself from liability.

Third Persons
A veterinarian’s duty of care with respect to third persons (i.e., those other than staff or owners) is largely coterminous with the duty owed to owners.  Obviously, it is highly infeasible for veterinarians to somehow safeguard the public at large from each and every dangerous animal that passes through a veterinarian’s office.  Although given the paucity of law on the issue it is difficult to say with absolute certainty, it is likely that a veterinarian’s discharge of his or her duty to warn as against an owner will protect that veterinarian from liability to a third person.

For example, if a veterinarian examines a particular animal and determines during that examination that the animal poses a substantial bite risk to humans, the veterinarian, as indicated above, should warn the owner of this risk.  If the veterinarian does not provide such a warning, he or she could be held liable based on negligence principles to an ignorant owner who is subsequently attacked by the animal.  Liability could flow to third persons on the same theory.  If the owner was not informed by the veterinarian of the observed dangerous propensities and has no knowledge of those propensities, an injured third person (or the owner if the owner is sued) could charge that it was the veterinarian, not the owner, who acted negligently.  On the other hand, if the owner is duly warned, there is no basis for assigning liability to the veterinarian, rather than the owner.  It is the owner, not the veterinarian, who has the primary responsibility for the control of the animal.

No matter what specific steps you feel are best utilized in order to protect yourself from potential liability for a failure to warn, the most important thing is to document and stick to whatever policies you implement.  One relative luxury veterinarians have with respect to this issue is the lack of any clearly defined standard to which veterinarians must adhere in the duty to warn context.  This circumstance in essence allows veterinarians to create their own “standard of care” by instituting internal policies such as those mentioned above.  The drawback is that a failure to adhere to this self-created standard may be used as evidence of negligent conduct where a staff member, owner, or third person is injured by a dangerous animal patient.  Note, however, that with the likely increase of litigation arising from animal attacks, the institution of internal policies is, in the aggregate, a desirable and perhaps necessary tool to combat veterinary liability, even though documenting and following such policies may be inconvenient.