Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

Veterinary Medicine and the Law:

How to Provide Good Care and Protect Yourself in the Process

Part III: Veterinary Records

by Francys C. Martin, Esq.
Claims and Litigation Coordinator
University of Florida Health Center Self-Insurance Program
11-3-3 Over the last few decades, the number of U.S. pet owners has increased.  According to the most recent National Council on Pet Population Study and Policy, in the last 30 years the number of dogs and cats in U.S. homes has more than doubled from 67 million to 164 million.  In yet another major study, a majority of pet owners reported they considered their pets to be family members.  As the number of pet owners and the emotion associated with ownership increases, so shall the likelihood of litigation.   Where there has been an adverse outcome or death of an animal, your natural inclination may be to convey your sympathy.  Expressing your sympathy is not an admission of guilt or liability, rather it conveys your understanding that this is a difficult time for all involved and that you empathize.  When owners are faced with the loss of a pet, they often seek to find a reason for that loss, and in the absence of any reasonable alternative, they may seek to blame the veterinarian.  It is appropriate to explain the adverse outcome to the client and express disappointment that better results were not achieved.   In the face of complications and loss of a pet, the owner may also incur additional medical bills.  Too often, a slight issue with care can become magnified when the owner receives the bill.  Though it would not be cost effective to write off bills for any perceived slight, this is a good resource to consider from a customer service perspective that may also serve to avoid litigation.  This allows the veterinarian to convey appropriate goodwill, again without admitting liability, and encourages the owner to return, knowing that medical bills will be handled reasonably.   Despite best efforts, not all relationships are fruitful for the veterinarian or the owner.  Some are toxic and need to be terminated, as those are   not in anyone’s best interests.  It may be that there is another veterinarian within the practice who is better equipped to deal with certain personalities and if willing, can provide a better experience for all those involved.  If the relationship is terminated, make sure to document the reasons for termination.  It may prove a more positive experience for the client if you make yourself available to provide emergent care to the patient for a limited amount of time during the transition to another veterinarian.   When all other options are exhausted and the relationship between the veterinarian and pet owner becomes irretrievably broken, the pet owner may seek to pursue litigation alleging negligence.  Negligence is generally defined as a failure to act as a reasonable person would act under similar circumstances.  The creation of the provider-patient relationship or provider-client relationship is the first step in establishing a negligence action against a veterinarian.  This relationship is what establishes a duty to the patient by the veterinarian or the practice.  The client must establish, either by implication or contract, that the veterinarian has created a professional medical relationship with the patient.  This relationship may also be created with extenders of that provider, including other employees of the practice.   Included in the veterinarian’s duty to the client is the obligation to provide care that falls within the standard of care provided by reasonably prudent veterinarians under similar circumstances.  Given that it is defined by comparison with other veterinarians under similar circumstances, it is relevant where the veterinarian is practicing and what type of practice has been established. For example, a veterinarian that handles predominantly small, domesticated animals would not be held to the same standard as a veterinarian that deals exclusively with wild or exotic animals.  Nor should a veterinarian in a small practice with limited resources and equipment be held to the same standard of care as that of a veterinarian in a large academic facility with state-of-the-art equipment.  The standard of care is often established through the use of experts in that same field or specialty who can better articulate what is expected of a veterinarian in that same circumstance.   The client must also establish that a breach of the veterinarian’s duty resulted in an injury.  This must be established within a reasonable degree of medical probability to be the proximate cause of the patient’s injury.  If the client is unable to establish that the injuries are as a result of the veterinarian’s breach of the standard of care, then causation cannot be established and there is no cause of action for negligence.  Though an accident or incident may occur in the course and scope of the veterinarian’s treatment, it does not mean that the breach is causally linked to the resulting injury or damages.   Finally, the owner must establish that damages were suffered.  Because animals are considered property under the law, the damages to the owner are rooted in economic loss as a result of the animal’s death or need for further medical care.  Economic loss will usually include the fair market value of the animal if it died or the costs associated with veterinary care as a result of the injury.  The market value of the animal often depends on its purpose.  Loss of income may also be awarded where the animal provides some service or generates a profit for the owner.   Under the laws of the State of Florida and most other states, animals are considered to be personal property.  As property, the loss of an animal cannot result in damages rooted in emotional distress. Therefore, the value of the claim is measured by the value of the animal and, potentially, the value of the veterinary services in dispute.  As a result, when these cases go to court they are usually relegated to county court, which handles matters with damages under $5,000.  However, many animals in our society have a higher value because of either their purpose or breeding.  The market value of some animals is exceedingly high because they are relatively rare and in high demand.  Where pet owners seek to make a claim for emotional distress, they must show some physical impact.  The typical exception to the “impact rule” is the presence of a familial relationship when, for example, a parent suffers emotional distress from the injury of a child as a result of malpractice.  The courts have not gone so far as to extend that application to animals.  For as much as many consider a pet to be a member of the family, Florida law does not.   Like most states, Florida also has a Good Samaritan Act that limits the liability of veterinarians rendering care to an injured animal in emergent circumstances.  The statute provides that, “Any person, including those licensed to practice veterinary medicine, who gratuitously and in good faith renders emergency care or treatment to an injured animal at the scene of an emergency on or adjacent to a roadway shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances.”  Unlike the provisions of the Good Samaritan Act involving human patients, the protections do not include emergent care provided in a veterinary office or facility.   Legal recourse is not the only avenue available to disgruntled veterinary clients.  For some clients, there is greater satisfaction in pursuing disciplinary sanctions.  Whether the complaint is valid or not, the Florida Board of Veterinary Medicine investigates most claims.  Some insurance carriers may provide optional endorsements that would cover settlements or judgments rendered for veterinary malpractice, and they may also cover legal fees for the defense of legal actions or licensure investigations.   Once an owner takes the step of initiating a claim or lawsuit, contact your liability insurance carrier as soon as possible in order to avoid compromising the defense of the claim.  Personnel at the insurer’s office will often handle the management of the claim and assign an attorney to represent your interests in any ensuing litigation.  Make certain to keep all correspondence with your carrier and attorney in a separate place and not within the medical records, as you may possibly lose the protections afforded by the attorney-client privilege.  In addition, though you may feel that you can resolve or address the owner’s concerns yourself, let your liability carrier and attorney handle the matter.  Continuing discussion with the owner about a claim or litigation can only serve to add to the confusion and is unethical if the claimant is represented by counsel.   As we have discussed in each segment of this series, communication is the cornerstone of a good veterinary practice.  Begin with an informed consent that advises the owner of all likely risks and complications.  This should serve to create reasonable expectations and advise the owner of their options.  Document all relevant medical care in a timely and organized manner in the medical record.  Where there has been an adverse outcome, inform and discuss this with the owner, and express your empathy.  Proactive communication with the client and within your documentation is key to avoiding litigation and to the defense of good veterinary care.   1  U.S. Pet Ownership & Demographics Sourcebook, 2012 Edition   2 Kennedy v. Byas, 867 So. 2d 1195 (Fla. Ct. App. 2004)   3§768.13(3), Florid Statutes (2012)