The 3C's of Malpractice Avoidance
With increased client awareness of the benefits of the human–animal bond and advances in preventive and specialized veterinary medicine, veterinarians today face an increased risk for malpractice claims.
There is also a possibility that damage awards may include more than just the market value of the animal (see Calculation of Damages).
To protect themselves financially and professionally, veterinary practitioners should adopt a risk management program that encompasses the 3 C’s of malpractice avoidance: competence, communication, and compassion.
If the practitioner and staff demonstrate reasonable competence in the delivery of veterinary services, any claim for malpractice is unlikely to be successful in the courts. Generally a claimant must demonstrate a causal connection between the practitioner’s conduct and the harm that resulted; if the clinician can demonstrate that standard of care was met, a claim for alleged malpractice will not be successful. However, state boards have the authority to sanction a veterinarian even if no harm occurred or can be proven.
To this end, practice owners and managers must ensure that veterinarians and their staff maintain competency by:
• Attending continuing education sessions
• Maintaining proper record-keeping strategies, such as SOAP*
• Investing in appropriate equipment and maintaining all equipment in the clinic
• Keeping up-to-date on new approaches
• Making appropriate referrals to a specialist
Practitioners also should be careful about what they say to clients, or in front of clients, about their peers. An offhand comment or condescending remark such as, “I never would have done the surgery that way...” can create doubts in clients’ minds about the care their pet has received and result in serious repercussions. Have the professional courtesy to reach out to the veterinarian who treated the patient. If you have a complaint, lodge it officially through the appropriate channels, but avoid belittling peers in front of clients.
Avoid the temptation to cite editorial comments about a client in the medical records.
Calculation of Damages
Historically, compensatory damages in veterinary medicine—usually in equine or food-producing animals—were straightforward and awarded when patients were either killed or injured. The general rules dictated that because animals are by law property, damages should be equivalent and limited to the market value of the animal. Anything more would be punitive on the defendant.
In recent years, courts increasingly have awarded damages for economic losses beyond market value by considering breeding status, pedigree, special training, veterinary expenses for the care of the animal’s injury or sickness, and any other particular economic value the animal has to the owner. In addition, in cases in which the defendant acted in a criminal or malicious manner, punitive damages can be awarded to punish and deter similar conduct.
Legislatures and a growing number of courts, however, have refused to allow noneconomic damages, such as pain and suffering, loss of companionship, and emotional distress, in typical malpractice cases when mere negligence is alleged, based on public policy grounds. A handful of judicial opinions can be interpreted as challenging this well-established rule, but attorneys on both sides understand that it’s extremely unlikely for a plaintiff to be able to recover noneconomic damages in any U.S. jurisdiction today.
*SOAP = subjective, objective, assessment, plan
Effective, candid communication with clients is critical to avoiding claims. Resist the temptation to soften the blow, use medical terms that clients may not understand, or make promises that cannot be kept. Use language that is sensitive, but also direct. Try something like, “I’m hopeful this surgery will help Oreo have a better quality of life, but as we’ve discussed before, there is a possibility that he might not survive.” This ensures that the client truly understands the risks involved and has all the information necessary to make an informed decision. The use of written informed consents (required in some states) is critical in obtaining the client’s acknowledgment and acceptance of risk.
If something goes awry, present the client with the facts of the case without being judgmental or offering an analysis of your conduct. Merely indicate the nature of the problem, the probable causes and, if applicable, the appropriate responses to the problem. Bad outcomes happen in veterinary medicine—but this doesn’t mean you failed to deliver appropriate standard of care. Don’t assume that you made a mistake or judge yourself harshly. It’s impossible to be objective if you are close to the case. A better and fairer solution is to ask all team members to jot down their observations. This approach also allows your staff to refresh their memories if the matter is litigated or brought before the state board at a later date.
It is critical that effective records management be a hallmark of the veterinary clinic; often, the content of medical records plays a critical role in defense of a claim. Be sure that staff members note in the record any services that were declined by the client and the reason why (usually financial). Many claims are based on the client later alleging that optimum service was not rendered.
It is also important that records reflect only factual statements; avoid the temptation to make editorial comments about the client. If a charge is brought against you, the patient’s entire record will be submitted to the licensing board as evidence. Records with sarcastic or unflattering commentary about the client or patient will be a poor reflection of your professional conduct and will not be helpful in your defense.
Obtaining the consent of the owner as well as documenting that consent (ie, where probable risks and costs of any treatment plan are discussed and noted) together serve as an effective communication tool. It is also critical that the person responsible for discussing this information with the client, whether that is the veterinarian or another team member, follows up with a question such as, “Do you have any questions about this treatment?” Failing to fully explain information could compromise your defense.
The 3 C’s of malpractice avoidance: competence, communication, and compassion.
Above all, it is critical to demonstrate an appropriate level of compassion for the client and the emotions that the client is experiencing when an unexpected or adverse consequence arises. Merely saying “sorry” can go a great distance in avoiding claims of malpractice.
Effective, candid communication with clients is critical to avoid claims.
After the final appeal of one memorable 2-year case, which was decided in favor of the veterinarian, the plaintiff pet owner sincerely told me that all she ever really needed was an apology from the practitioner. A good deal of time and expense were wasted as a result of the veterinarian’s reluctance to apologize.
The law of veterinary malpractice continues to evolve, both in the courts and in state legislatures. The prudent veterinary practitioner is aware of these changes and takes steps to avoid claims of malpractice. With the implementation of an effective risk management strategy, most allegations can be avoided. | EVT