Vet P.O.V. We [Veterinarians] Can’t Have It Both Ways

Since I'll be kayaking in Key Largo far away from my DSL modem for the next couple of days, this and the next post are reprints of the last couple months' Veterinary Practice News columns.Enjoy and comment away--I'll be back on Tuesday to respond.

I’ve suffered the disgrace of a malpractice lawsuit--no, not mine. But I served as a witness in a case brought against another veterinarian. The deposition was an uncomfortable experience (understatement).

Restraining my unfortunate inclination towards verbal excess was the hardest part, yet I managed. And so did my colleague on the hot-seat, by the way. I’m sure he’s almost gotten past the night sweats nearly two years after the fact.

In case you’ve never been the defendant --or unwitting witness-- in a lawsuit brought against you or your hospital for negligence, malpractice or (God forbid!) animal cruelty, let me inform you that it’s just what you’d expect: a nightmare worthy of the post-traumatic stress disorder that we spared folk can only imagine.

Perhaps I hyperbolize, but it’s no stretch to say that most of us worry a whole lot about being sued. I do. But as a generalist, I’ve got it easy.

I’m lucky enough to know my every client and have the luxury of investing time in their trust. The specialists, ER docs and high-volume vets? They’re not so fortunate. I’ve gotta guess they live in high-anxiety mode relative to my measly unease.

But mostly that anxiety’s a little overblown compared to our human medical brethren. They’ve got some serious angst to contend with on the legal front.

My friends and family in the OB/gyn field (all three of them) find themselves on the deposition circuit every year or so. That’s the cost of doing business in Florida these days. They suck it up and fail to stress because it happens to all of them, regardless of experience or skill.

We vets are new to it. I think that’s why it hits us harder. And yet precious few of us really have much to worry about—yet.

My PLIT expenses for the year? Less than $300. My friend the OB/gyn’s? $140,000! It’s no wonder a wholly uncomplicated delivery costs $15,000 in Miami. By contrast, we vets have a long way to go before we’ll be passing significant expenses onto our clients.

Nonetheless, we collectively wring our hands over the prospect of a modest bump in our legal expenses and malpractice insurance, the worry brought on by an ostensibly looming onslaught of suits spearheaded by those who would seek compensatory damages beyond the pallor of the price-per-stray price-point.

Our goose-pimple patients these days are older pets of undistinguished pedigree worth nothing but the front-clip harness their owners paid 30 bucks for last week. But if you think about it, these pets are worth far more than that to us.

In practice management terms, our patients are income streams incarnate. We recognize the future value of each individual patient, a flexible denomination that balloons and contracts based on proof of our own emotional investment in their care.

Uniforms, sensitivity-trained staff, paw-print memorials and all the rest pay homage to the emotional factor, that human-animal bond we worship.

No matter what the glossy practice management periodicals tell us, our profession rejects the human-animal bond—in a court of law, that is.

We may not participate directly, but we leave it to our profession’s representatives to beseech courts and legislatures to consider adverse repercussions of high-priced settlements and assessing emotional damages.

In case you’re not aware of our profession’s stance, here are our most oft-cited reasons for opposing claims for emotional compensation:

* Higher payouts mean steeper malpractice premiums and higher prices at the pump (that’s us).

* “Emotional compensation” smacks of a move towards “guardianship” and the latter concept opens up a can of worms neither we nor our clients are prepared to deal with.

* Bigger money awards mean more lawsuits and we’re scared of lawsuits. The human medical paradigm and the ridiculously high-priced jury awards are usually brought up here.

* Compensation for emotional damages is arbitrary since emotional attachment is difficult to prove.

Presenting our rationale, even in this thumbnail sketch, it’s tough to completely disagree with the logic, or sentiments, it conveys.

And yet the dichotomy between how we practice (with an eye towards recruiting our clients’ emotional sympathies) and how we defend our right to do so (rejecting financial claims to emotional attachment) still leaves me cold.

Perhaps that’s because what we understandably want for ourselves is at odds with what our clients may well deserve. Perhaps our apprehension, though warranted, is unrealistically driving our profession’s policies in ways that are not ultimately morally or politically sustainable.

Here’s another consideration: We’re all aware that our clients continue to face rising healthcare costs. It’s also clear that our communities care increasingly for their non-human companions. Legal remedies are already available for a variety of property designations and emotionally damaging conditions.

Isn’t it inevitable, then, that our country will carry on with its inexorable drive to legislate in favor of expanded compensatory damages for the loss of its pets? Given that inevitability, are we willing to stand publicly in defiance of the tort system as it applies—just to us?

May’s Menu Foods settlement offer (not yet approved by the presiding New Jersey court at press-time) is a perfect example of how our legal bodies will continue to move in a direction we veterinarians will be hard-pressed to push back against. Should a $900 check arrive as refund for your Fluffy and the toxic food she consumed, how would you feel-- suspicious of the precedent-setting settlement … or cheated?

How about if the airline leaves Fido on the tarmac for three hours in the blistering heat in spite of your onboard pleas? You’d want the responsible parties to pay more than the value of his now-useless crate and well-worn Coach collar.

Much as we hate the prospect of increased malpractice premiums, what we really dread is the condemnation of our clients—especially when it’s meted out in legal terms.

We don’t really disagree with the concept of dispensing justice fairly. We don’t really want to bar our clients from seeking just compensation for the lives of their animals. We simply don’t care to be the target of our clients’ quest for justice—an understandable sentiment for any legal entity, whether we’re Menu Foods, X Airlines, Y Animal Hospital or Dr. Z.

But is it fair for us to have it both ways? Doesn’t having it thus, by definition, put a crimp in our integrity? Ultimately, what kind of havoc might that wreak with our standing in the community? With our professional reputations? With our self-respect as loving caregivers?

After my close brush with a posh downtown law firm, aggressive attorneys and a dyslexic court reporter, I’m convinced I never want to repeat the experience. Nonetheless, I don’t see our profession’s hard-line stance against emotional compensation as a viable long-term position. This battle’s not winnable--or fair.

July 27th, 2008

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After a failed post of comparing human/animal medical care not appearing on this site, I'll shorten to a few sentences:

If any reader, whether animal professional or pet-owner, after viewing my web site, including the death page of my cherished "Pocket" feels that their governmental resources or legal avenues offer any protection from fraud, abuse, negligence, or cruelty; I would be most happy to read those comments.

I can only state that Pocket's Story is only one form of egregious conduct that has occurred in my state of New Hampshire without repercussion or previous discontinuation of inhumane end of life for companion pets. My web site link is attached to my name.

Barbara A. Albright/New Hampshire July 27th, 2008 01:40:00 PM

I agree with your bottom line conclusion here, which is that veterinary medicine's official stance against non-economic damages is untenable.

I also sadly observe that your confessed hesitancy to testify in a way potentially damaging to a colleage is pervasive among your ranks, and I observe that this generally remains true regardless of the accused vets apparent culpability or lapses, etc. It makes me very sad that "good vets" routinely cast their sympathies with vets who are practising shoddy medicine. I presume that the thinking goes:

"There but for the Grace of God go I."

But in fact, that's not true.

When a vet ligates ureters during a spay . . . . is it a case of "there but for the grace . . ."

When a vet repeatedly ignores the symptoms of bloat until it's too late, in a breed prone to bloat, is it a case of ". . . there but for the grace . . .?"

When a vet leaves his patients with an unlicensed assistant, who is allowed unsupervised, to give dangerous drugs, and an overdose results, is it a case of "there but for the grace . . . "

When a vet loses his temper and lashes out at a patient, is it a case of "there but for the grace . . ."

These are all real examples. The hesitance of veterinarians who care about quality and accountability to participate in holding their colleagues accountable in such circumstances is, to say the least, incredibly depressing to a comitted pet owner looking down the road at a lifetime of needing veterinarians.

After my cat was OD'd, he was taken to a 24 hour place. I never had a chance to talk to the attending vet there about what she'd observed that night in my cat. When I went to talk to her, after I'd already filed a complaint on the first vet, she came out and basically yelled at me in front of a lobby full of people, saying she'd sent the records to the board, and she "washed her hands" of the case. She was friends of course, with the first vet, and when she was asked to come to the board confernce, she sat next to him, they were chatty, as far as I was concerned they might as well have been holding hands. She had to admit that my cat was comatose when he was delivered to her.

As for post-traumatic stress, what about the PTSD suffered by those of us who live with the vision of our suffering loved ones?

I held my cat in my arms on a one and a half hour drive in rush hour traffic while he had a series of grand mal seizures and nearly died, yowling. This was due to the brain damage suffered from "neuroglycopenia." They had to induce a coma to get it to stop. Then watching him struggle to get up and walk. Waiting for him to recover, which the neurologist said would not occur if there had been "massive necrosis." Well, I guess that there had been massive necrosis. I relive that drive nearly every day, and did so even more acutely while he was alive and I was watching him struggle to walk and relearning to groom. I went into full fight-or-flight response over and over, at a variety of triggers. Couldn't sleep. I blamed myself for trusting the vet. I woke up in a sweat praying that it was all a bad dream. Day after day I looked up at my damaged friend and realized that it was not a bad dream. It was a living nightmare.

So, I'm not too sympathetic on suffering PTSD as a result of having to defend a malpractice accusation. A vet who is not guilty of malpractice should be confident, especially with the vet boards who take action in less than 10% of cases in most states. They inherently sympathize with their colleagues, following the same logic as above.

If they have, however, done something they should not have, then I doubt their PTSD compares in magnitude to that of the bereaved, terrorized, heartbroken owner. I know this firsthand.

If everyone would stand up and demand and accept accountability, a lot of the stress and horrible feeling would go away on both sides. Getting the gaslight treatment definitely makes things worse for owners. It always happens. I imagine the stress of lying, defending, and covering up also causes a great deal of emotional damage for practitioners.

We need to move toward quality and accountability. The blame game will end when vets are willing to stand up, be accountable, strive for quality, and deal fairly with owners. No one wants to get rich off losing their pet.

They want their losses acknowledged and valued. They want accountability. They want to know that steps are being taken to make sure it doesn't happen again.

This is starting to happen in human medicine with the disclosure and apology movement, and I can only hope that it takes hold in vet med as well.

Stefani July 27th, 2008 03:41:00 PM

Stefani: You're right. I was reluctant to testify against my own. But only because what he did was not wrong. In fact, my testimony got him off the hook...but only because he *deserved* to be spared the loss of license that his accusers were seeking. What happened was an accident plain and simple. Sometimes that happens.

Dr. Patty Khuly July 29th, 2008 08:17:00 AM

Although many pet owners "seek" to have a vets license taken away by the vet board, this happens extremely rarely, and that's an understatement.

While I don't know the circumstances of your colleagues situation, I can say that what happened involving my cat was also an "accident" -- but IMHO, an accident made possible by mind boggling carelessness and negligence in leaving an unqualified person alone to administer meds with no vet on premises. I bring this up not to harp again on my own case but to underscore the pont that some accidents are bound to happen as a result of shoddy management procedures. Particularly when it involves unlicensed technicians and assistants, for example.

Stefani July 29th, 2008 08:51:00 AM

No doubt that not all accidents are created equal. You're right. The two situations are not comparable.

Dr. Patty Khuly July 29th, 2008 12:11:00 PM

Dr. Khuly, Would you have testified if your colleague was clearly wrong & negligent? I would like to think that the legal system id still intact and that *any person* under oath will tell the truth, whether favorable or not to any party, particularly involving medical expertise.

It would think it would be difficult to justify euthanasia performed by a veterinary professional utilizing toxic chemicals (no better than household "Drano")on a fully conscious animal, both illegal and unethical. How would you feel about testifying to a like circumstance?

I can't help but think it is doubtful that both a client (and attorney) would bring a case to court without some "malpractice or negligence involved" , after all, legal expenses aren't cheap and if prevailing--judgements are exceeding low involving a pet.

But yes, I do not know of the "case" you refer to.

Barbara A. Albright/New Hampshire July 29th, 2008 07:35:00 PM

Barbara: I was talking to my boyfriend about that the other day. There are a handful of vets in this area I would LOVE to have the opportunity to testify against. I'd like nothing better than to see vets who abuse clients emotionally and/or financially, refuse to refer cases they cannot treat (my big pet peeve), and/or cut serious corners (without letting their clients know they're doing so) prosecuted for what I consider "crimes."

Yes, some vets deserve a big legal boot in their backsides. As in every industry there are always a few bad apples. That's what the legal system is there to help us weed out. But, no, I was only ever called in to testify on what I considered an "acceptable surgical complication," something that could've happened to any vet.