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 I: Informed Consent

By Francys C. Martin, Esq.
Claims and Litigation Coordinator
University of Florida Health Center Self-Insurance Program
11-1-3 When providing veterinary care, the healthcare provider is dealing not only with the health and wellbeing of the animal, but with the owner’s concerns as well.  Regardless of the type of patient, however, there is a minimum standard of care that should be provided by every healthcare provider.  Every provision of appropriate and thorough care begins with the examination of the animal and the performance of tests, including radiographic studies and laboratory tests.  The veterinarian can then provide the owner with the available treatment options, explaining the risks and benefits of each.  It is wisest to provide the owner with all of this information in writing, explaining the type of procedure and a majority of the most likely complications, and to also obtain their consent and understanding in writing.  Any procedures involved in the treatment may also require a separate informed consent.  Informed consents are one of the critical protections available to all healthcare providers, including not only fully advising the owner of risks and complications, but of documenting these in the medical record and in the informed consent that is acknowledged and signed by the owner.  Because legal action can often come to fruition years after the event, the medical records are often the only manner in which the thought process of the veterinarian and the understanding of the owner have been memorialized.  We will discuss medical records and how vital they are to the defense of a veterinary malpractice action in the second part of this article.   A key component of meeting the standard of care is being able to provide the owner with a fully informed analysis of the patient’s condition, the treatment options and the risks associated with those options, so that the signed consent and authorization is as informative as it reasonably can be.  Of course, one cannot inform an owner of all the possible risks and complications, as each of those complications come with their own set of complications.  The key is to provide enough information so that the owner may make a reasonably informed decision. Of course, as with any procedure, test or treatment, even the most apparently innocuous have inherent risk and danger.  It can be a fine balance between trying to fully inform the owner and not creating additional stress or concern.  Part of your mission is also to reassure the owner that the procedure or treatment will go well.  Or, in some circumstances, be frank about your concerns that the procedure may be experimental, risky, or not likely to work, but that it may be the only option available.  Whenever possible, some owners are encouraged by success rates and percentages within your own practice and in the public at large. Therefore, you may want to have this information available should you need to quantify the success rates, as well as the risk rates.   Part of any informed discussion is to discuss the nature of the animal’s condition and the diagnosis.  Because animals are considered property, the decision about whether or not to treat a particular ailment is different than it would be for a human patient.  For some, the decision whether or not to initiate treatment or perform tests on an animal is a question of money.  Part of the informed consent should include the prognosis or risk to the animal should the owner refuse any treatment at all.  Should they elect to proceed with treatment, it is wise to provide a number of treatment options when possible and the purpose or reason for each.  A number of complaints and claims are filed when the treatment, that was so desperately requested, has failed and the owner is left with a substantial bill and effectively, nothing to show for it.   As evidenced already by this discussion, communication is at the center of almost all human discourse.  This includes both oral and written communications.  Many claims are made and lawsuits filed because of a breakdown in communication between the veterinarian and the client. This breakdown can occur at almost any or all points in your interaction with the client, beginning with the examination and diagnosis.  This stage can sometimes be one filled with fear about their pet’s condition and clients under stress may not always fully assimilate the information provided or remember it accurately.  It is also important to convey that results are not guaranteed.  As with any healthcare, many factors play a role in the outcome of the animal and many of these are out of your control.  Unreasonable expectations will only lead to disappointment, confusion and anger.   Therefore, it is beneficial to discuss a treatment plan, put it in writing, and to provide an estimate of the charges associated with that treatment plan. Ideally, this estimate is signed by the client and you should ensure that you retain a copy of that signed estimate in your file. You or a trained staff member should go over it with them in detail and answer any questions associated with that treatment plan.  Remember to keep it simple and use plain English when explaining the animal’s condition and the proposed treatment.  Otherwise, you may inadvertently contribute to the client’s stress and confusion.  They may feel intimidated by the words they don’t understand and may be less likely to ask questions that would help you allay their fears.   Along with the discussion of the care, it is also helpful to provide the owner with handouts or information about the procedure or treatment.  In this increasingly technologically savvy world, clients are very likely to Google and diagnose their pets themselves.  Better to control the dissemination of that information yourself to make certain they are receiving reputable information. Once the treatment plan and estimate are accepted, and prior to any treatment or procedure, an informed consent will serve to more thoroughly outline the risks and benefits of the procedures and again will be signed by the owner to evidence their receipt and understanding. In a study by the Institute of Medicine it was found that half of Americans do not understand basic health information.   Therefore, written material provided to patients should be written at an eighth-grade level.   If the proposed treatment involves surgery, there should also be a discussion of who will actually be performing the surgery and where it will be performed.  It may be the surgery is to be performed at another facility, and although you cannot advise of all the policies, processes and costs of an outside facility, some effort should be made to at least inform the owner that there will be another party involved with which they should also discuss their concerns. The location and methods of transportation may also be significant depending on how far from the owner’s home the treatment is to take place, resulting in additional costs that may also include boarding. The value of animals as property, and therefore the value of their care, is quite dependent on the type of animal and some can be quite expensive.  For example, the purchase of a horse can be a substantial investment and as a result, pre-purchase examinations of the horse by a veterinarian are quite important and can have serious ramifications on the success of the deal.  Horse communities in certain geographic areas can feel quite small and often the same parties are involved.  Therefore, it is key to let all parties involved know whether they have worked together in the past and whether the veterinarian has treated the horse in the past.  If no conflict of interest exists, or if all parties are aware of conflicts and consent, it would also be beneficial to the veterinarian to have that conflict acknowledged in writing by all parties involved to avoid potentially being accused of any impropriety in the future.   A better informed owner is often a more satisfied owner.  When given all available information and provided an opportunity to ask questions, owners will feel that they’ve been given a true opportunity to participate in the care and assert some control over a situation that can often feel out of their control.  Remember that, in a sense, the owner is your patient as well.  Taking these steps will assist the owner, but also provide some level of protection to you and your practice should any claims be made in the future.  In the next segment of this article, we will discuss the importance of medical records.