By Cynthia G. Mackenzie, DVM, with Katie Navarra
In human medicine, lawsuits are common after a patient experiences further injury or death after receiving medical care. In August 2011, the New England Journal published “Malpractice Risk According to Physician Specialty,” a study that revealed that 99% of physicians face a malpractice lawsuit by age 65.
Equine practitioners are fortunate to face far fewer malpractice claims than human doctors. The AVMA Trust-sponsored PLIT program receives an average of 3,500-4,000 notices of potential or actual claims each year. Of those complaints, approximately 5% are equine-specific incidents. Although they represent the smallest percentage of total annual claims, equine complaints result in higher payouts in contrast to other insurance classes, such as small animal.
Importantly, equine complaints also tend to result in litigation more often than other classes of animals due to the higher value of these patients. While incidents related to pre-purchase exams are the most common cause of equine claims seen by the AVMA Trust, the program routinely identifies other situations as repeated sources of equine claims, complaints and lawsuits. These include:
- Consent and miscommunication issues
- Rectal tears
- Complications related to anesthesia, sedation and castrations
While equine veterinarians have a lower probability of being subject to a malpractice lawsuit, they should still be prepared in the event they are faced with one.
Understanding what malpractice is and how to implement strategies to protect yourself and your practice is critical.
Defining Malpractice
Malpractice is defined as the failure of a professional person to use such reasonable skill and diligence as are ordinarily expected of careful, skilled and trustworthy persons in his or her profession.1 A veterinarian is held to a performance level equal to that of others in a similar practice type and with similar training, education and experience. What other veterinarians would find reasonable is termed “Standard of Care” (SOC).
Professional liability insurance responds to allegations of negligence or practicing below the standard of care. Veterinarians who receive allegations of negligence or a malpractice complaint should inform their malpractice insurance carriers immediately.
Minimizing the likelihood of veterinary professional liability (also known as malpractice) claims and license defense complaints focuses on four key principles:
- Recognizing the importance of complete medical records
- Keeping people and patients out of harm’s way
- Practicing good medicine
- Using enhanced communication skills
Following these principles will aid in avoiding dissatisfied clients and subsequently reduce the chance of a malpractice claim or board complaint. Let’s look at each of these in more detail.
Maintain good medical records: If you are accused of malpractice, your medical records are your defense. Equine practitioners should have a method of completing and maintaining medical records, whether mobile or in a hospital setting. Complete and legible medical records are imperative. Remember, from a legal perspective, if it was not written down, it did not occur.
Medical records are an open component of your communication practices. Documentation should show sound professional judgment based on information available at that time. Check with your state veterinary practice act as to record-keeping requirements. A good rule to follow is that any veterinarian who reads a medical record should be able to pick up where the last veterinarian left off with treatment of that patient.
The following items should be included in medical records:
- Written consent forms
- Anesthesia logs
- Surgery reports
- Physical exam findings
- Daily boarding report cards
- Diagnostics recommended and declined by owner
- Lab results
- Estimate sheets
- All communication, including texts, e-mails, voice messages and verbal conversations
The quality of care provided will be judged on the documentation contained in the medical records. The practice owns these records, including original radiographs. The client of the records is entitled to copies upon request within a reasonable time period. Be sure to consult your state veterinary practice act for specifics in regard to providing records to owners.
Keep clients and patients safe: It’s critical to keep people and patients safe. Human injuries do affect the professional liability program when it comes to malpractice. This is especially true in equine practice where it is still considered the standard of care for clients to restrain horses or assist with procedures. The size of horses and their flight nature can make treating horses more dangerous, unpredictable and challenging.
It is the responsibility of the veterinarian to ensure the safety of everyone involved in or around at the time of a veterinary procedure. To reduce the chance of a person getting hurt, appropriate staff training and having staff present to restrain patients, rather than allowing clients to restrain patients, is preferable. Use chemical restraint, if necessary, to reduce the chance of an injury as well as a worker’s compensation claim if an employee is injured.
Practice good medicine: Equine veterinarians do their best to practice good-quality medicine. Even when their best judgment is exercised and appropriate protocol is followed, unfortunate outcomes can happen. Some are simply the result of inherent risks, and yet might be alleged by the client as mistakes. Veterinarians and their staffs are human, and medical errors will happen, which is why it is so important to protect yourself with appropriate malpractice coverage.
Continuing your education and practicing cutting-edge medicine will ensure that you stay current on the latest treatments, guidelines and techniques and will also demonstrate to your clients a commitment to providing the best care possible. It is essential to continually familiarize yourself with new drugs, new procedures, new vaccines, new protocols and new guidelines. It also is important to refer a patient when the appropriate expertise or equipment to perform a needed procedure is not available. Always recommend what is in the best interest of the patient.
Enhance your communication skills: According to O’Connell and Bonvicini,2 poor communication and malpractice claims are correlated. These questions can be a good place to start in evaluating your communication with clients:
- Do you explain the risks versus benefits of a recommended procedure or drug?
- Do you consistently get client consent?
- How do you deliver bad news?
- How do you handle an upset client?
- How do you handle conflict?
- Do you tell the client the truth if a mistake is made?
- Do you use reflective listening?
Veterinarians should always explain the risks versus benefits of a recommended procedure or drug and obtain owner consent.
Communication in practice can occur across different levels and between the veterinarians, clients and staff. Breakdowns in communication can occur in many places. One specific area in equine practice where breakdowns in communication can have significant repercussions is pre-purchase exams (PPE) for absentee buyers. The unique veterinarian-client-patient relationship that exists in the equine industry oftentimes leads to the increased likelihood of miscommunication.
With many pre-purchase exams, the buyer’s agent or trainer is in communication with the seller rather than the veterinarian. When a veterinarian is presented with a pre-purchase exam for an absentee buyer, it’s important to consider these increased communication challenges. The veterinarian should still provide a thorough exam and the best possible picture of the horse’s serviceability.
By making an effort to keep the buyer completely informed, the likelihood of complaints once the buyer examines a new purchase in person for the first time can be reduced. Technology can play a useful role in this effort, for example, by including videos and pictures in your report. Be sure that the final report is sent to the absentee buyer in a timely manner either by certified mail or, if emailed, utilize the “read receipt” function to ensure that the report is received.
The Bottom Line
Veterinarians are committed to providing the best possible care for their equine patients. There is nothing more satisfying than being able to help a horse heal from an injury or overcome illness. Unfortunately, the outcome is not always a fairytale ending. While most horse owners recognize and accept this possibility, some will not. Those clients might file a malpractice lawsuit. Therefore, always maintain appropriate levels of professional liability insurance coverage to help provide a bubble of protection around your ability to practice veterinary medicine. Staying current on the latest practices, maintaining impeccable records, clearly explaining details to clients by using good communication skills, and keeping people and patients out of harm’s way are the best ways to protect yourself and your business in the unfortunate event that a lawsuit is filed.
References
1. Taake v. WHGK Inc., 228 Ill. App. 3d 692, 708, 170 Ill. Dec. 479, 592 N.E.2d 1159 (1992), Advincula v. United Blood Services, 176 Ill. 2d. 1 (1996).
2. O’Connell, D.; Bonvicini, K.A. Addressing disappointment in veterinary practice. In: Cornell, K.K.; Brandt ,J.C.; Bonvicini, K.A., ed. Veterinary Clinics of North America Small Animal Practice volume 37. Number 1. Jan 2007. Philadelphia: Saunders, 135-149.
