Dolittler Guest Post Justice for Bella? Reflections on settling the first veterinary malpractice case I ever filed
by Marcy LaHart, JD
[This article is brougt to you by Marcy Lahart, a South Florida lawyer who dedicates her practice to cases where she advocates on behalf of animals. She is an adjunct professor of law at the University of Miami, where she teaches a course on animal law. At Ms. LaHart's request I will be "teaching" one of her course's seminars this spring, hopefully helping law students understand the veterinary perspective in cases like the one Ms. LaHart describes below. Her post is a little long for a blog, but it provides an excellent insight into what animal lawyers are up against. Enjoy.]
I grew up reading “All Creatures Great and Small’ and worshipping veterinarians. If I had believed (or was even encouraged to believe) I was any good at science and math, I would have tried to go to vet school myself. I ended up with an undergraduate degree in psychology. Which qualified me to do little except . . . go to law school. I started out doing environmental law and eventually wound up with my own practice doing environmental and animal law.
But enough about me. Let me tell you about my client Dan and the first time I ever sued a vet. It did not come easy. I thought vets walked on water. But Dan’s story made my toes curl. Here it is: Dan is also a lawyer. While he was in law school at FSU in Tallahassee, he went to the Leon County Humane Society and adopted Bella. The shelter staff tried to talk him out of it—she was heartworm positive—they were already planning on euthanizing her because she had this condition that would be expensive to treat.
As appalling as that sounds, shelter worker have to kill thousands upon thousands of perfectly healthy dogs and cats every year. A dog with heartworms, especially a large, fairly non-descript mix breed like Bella, who maybe had a third cousin once removed who was half yellow lab, is not highly adoptable. And as long as she stays at the shelter she is taking up a cage that a cute healthy highly adoptable little dog could occupy.
Dan talked them into letting him adopt Bella. He literally saved her life. I have no doubt that she knew it and appreciated it. Through thick and thin, finals, the bar exam, various girlfriends, various jobs-Bella was a constant in his life, loyal and grateful as they come.
Dan called me after seeing an article about animal law that made passing reference to yours truly. At the time I had read every veterinary malpractice case every reported in Florida, and others from around the country, but I had never actually litigated one. Dan told me the story of how he had recently lost his beloved Bella.
He got up one morning ready to head to work and found Bella in the living room with two empty boxes of rat poison. He did not know the poison was in the house, and to this day does not know who purchased it and put it under his sink. Perhaps a roommate or maybe his mother. Doesn’t really matter now. Bella found the poison and ingested it, and Dan, a responsible and loving pet owner, immediately rushed Bella and the two empty boxes to his veterinarian.
So he does not sue me for defamation (Although truth is a complete defense, and everything I say here is true, but who needs the hassle?), I will identify Dan’s vet as Dr. Defendant. Dr. Defendant took some blood from Bella, and according to my client, and pushed it around on a microscope slide, something Dr. Defendant called in his notes a “gross clotting time test.” (My expert witness, who has practiced small animal veterinary medicine since I was in diapers, says there is no such thing as a gross clotting time test.) Dr. Defendant administered a single shot of vitamin K to Bella- and sent Dan and Bella on their way. He did not recommend follow up blood testing to make sure her blood was clotting properly. Nor did he prescribe the vitamin k capsules that would have saved Bella’s life.
Nine days later, Dan came home late and was watching TV. He realized that Bella was not right next to him like she always was when he was parked in front of the tube. He went to look for her, and found her on the floor of his bedroom, lethargic, blood oozing from her elbows, obviously in distress. Dan rushed Bella to the closest emergency clinic, arriving at 1 am. The diagnosis was “rat poison intoxication.” The treating veterinarian administered another vitamin K injection, prescribed vitamin K capsules for the next 4 weeks, and advised Dan that Bella should follow up with more diagnostic blood work in a few days.
Dan and Bella returned home and Dan slept on the floor with his dog-she was too weak to get up on the bed next to him where she usually slept. (I relayed this story to a girlfriend of mine who was so moved by Dan’s compassion and loyalty that she immediately asked to be set up with him, but that is another story.) The next morning Bella was obviously still very sick, and Dan took her to another veterinarian, whom for purposes of this story I shall call Dr. C. Dr. C aggressively treated Bella, and arranged an emergency ultra sound, but it was too damn late. She was bleeding profusely into her chest, and died at the hospital where Dr. C works.
Prior to this case I wouldn’t have known how to properly treat a dog that has ingested rat poison, neither did Dan. We were both absent from law school the day that was covered I guess, which is why Dan had to rely upon Dr. Defendant’s expertise. But after Bella died, Dan told his aunt, who is a veterinarian in another state, about what had happened.
She told him that in veterinary medicine 101 vet students are taught that if a dog has ingested this particular kind of rat poison, vitamin k capsules should be prescribed to be administered a couple times a day for 3 weeks minimum. (She also said that the night Dan took Bella to the emergency clinic, Bella should have been admitted, not sent home, and chest ex-rays and clotting profiles should have been performed.)
My subsequent research confirmed Auntie Vet’s opinion; basic standard of care requires that Dr. Defendant should have done a clotting profile, and in addition to the injection of vitamin k he should have prescribed vitamin k capsules for 2-4 weeks. And a diligent veterinarian would insist that the blood work be repeated a day or two later after the poison was ingested, and again after the vitamin K capsules were stopped to ensure the dog could clot her own.
My client filed a complaint against Dr. Defendant with the Florida Department of Business and Professional Regulation, the state agency that regulates veterinarians. Bella’s death was in January of 2003. The Department decided that there was “probable cause” to investigate Dan’s complaint, and the case was reviewed by an expert. The Department finally decided that Dr. Defendant had breached the standard of care, and in June of 2005, two and a half years after Bella died, Dr. Defendant had to pay a whopping $750.00 fine.
The civil case I filed against Dr. Defendant limped along, and candidly I must take some responsibility for the fact that it was not resolved sooner. In the time that the case was pending, four different associates from Sellars, Marion & Bachi worked on the case. Sellars, Marion & Bachi is the law firm of choice for the insurance company that insures every vet in the state-hence they have been my opposing counsel in probably a dozen cases now. I wish I had a dollar for every time one of their attorneys has said in court “Like it or not your honor, animals are property under the law.”
Even insurance defense attorneys seem to feel a little sheepish about proclaiming that animals are just property, like your desk or toaster or dirty socks. I actually became good friends with attorney number 2 of 4, in spite of the fact that at one point cited a 1901 statute stating that you can shoot a dog that is harassing your livestock as evidence for why Dr. Defendant should be off the hook. After she left the firm I ended up being with her for moral support when her beloved, geriatric cat, with her since college, but nonetheless property under the law, was euthanized. She was a basket case. The irony was palpable, but I kept my mouth shut.
When attorney number one took Dan’s deposition, his questions implied that Dr. Defendant’s defense would be that Bella must have gotten into rat poison again after Dr. Defendant treated her. Puhleeze. That is what we called in law school a “bag head argument.” One you would not want to make to a judge or jury without a paper bag over your head. Dan handled his deposition admirably- my 6ft something very handsome client with a deep voice that rivals Carl Castle teared up when talking about his dog. A jury would have loved him.
I took Dr. C’s deposition, the vet that treated Bella after the emergency clinic, the vet whose best efforts to save Bella were for naught. I have a soft spot in my heart for Dr. C., he is a warm, genuine person who sincerely cares about animals, and is nonplussed by pet store vets that provide minimum care to a new pet store puppy in exchange for client referrals from the pet store. He is not quite as outraged by it as I am, but then few are.
Unfortunately he suffers the malady that infects most vets, reluctance to call a spade a spade when the spade is a veterinary colleague. Because of my aforementioned soft spot for Dr. C I was gentler than I should have been in his depo. Off the record, with my opposing counsel out of the room, he said that Dr. Defendant is widely regarded as a quack and his treatment of Bella was gross negligence. But on the record he said that he could not say what is negligence or is not negligence. I did not nail him for it because I guess I am not as bad ass as a litigator as I would like to think.
After the depo he apologized, again off record, saying if the defendant weren’t right down the road from him, if he owned the practice he works at and didn’t have to worry about the wrath of the boss man for ratting out a fellow vet, he would have been more candid.
Sellars, Marion and Bachi tried repeatedly to have the case decided on motions for summary judgment; they were unsuccessful, in spite of Dr. Defendant’s self serving affidavit that he was not negligent in any way in his treatment of Bella. Obviously paying a fine to the Department of Business and Professional Regulation had done nothing to instill humility.
Much too long after I filed the suit against Dr. Defendant, we settled out of court for $4,500.00. We had a great expert, Dr. Greene, who was the same expert that had been retained by the State to review the file for the Department of Business and Professional Regulation. He gave a great deposition-he always does. And he is not just a hired gun that will say whatever you pay him to say-he is objective and thorough and honest and I trust him immensely. He is one of the only vets in the whole state that will testify against another vet, but he is also very expensive, and few of my clients can afford him.
Why did we settle for $4,500? The measure of damages in a veterinary malpractice case in Florida is unclear. My four sequential opposing counsel argued that even if Dr. Defendant was negligent (which of course he wasn’t, that nasty business with the state board notwithstanding) all my client was entitled to is Bella’s fair market value—the fee he paid to adopt her—I think $65.00. My complaint asserted that Dr. Defendant was “grossly negligent”, meaning much more negligent than a simple oops.
I claimed, and I fully believe, that the Defendant’s conduct showed indifference to Bella’s life, and that therefore Dr. Defendant was on the hook for Dan’s emotional distress, not just Bella’s fair market value. Dr. Greene would have testified that the Defendant was grossly negligent, and I have no doubt he’d have done a kick ass job.
But the lawyers for the insurance company had filed what is called an “offer of judgment”-they had offered to settle the case for $2,700- and if we went to trial and the final jury verdict came back 25% less than the offer, we would have to pay Dr. Defendant’s attorney’s fees. If the jury did not agree that Dr. Defendant was grossly negligent as opposed to just garden variety oops negligent, the verdict would be zero and we would be stuck paying for Dr. Defendant’s legal fees.
Given that risk, along with the fact that Dan has moved out of state, had a beautiful little girl with his new wife, and is not in a position to cough up the considerable expense to try a case, and the fact that whatever the verdict we obtained, it would not bring Bella back and Defendant’s insurance company would cover it up to the policy limit of $100,000 ( the largest veterinary malpractice judgment to date is $35,000), meaning it would not cost Dr. Defendant a single dingle dime no matter what, we took the settlement. I wanted to hold out for more but Dan was sick of the whole back and forth with the insurance company, I think to him it only served to cheapen Bella’s life and of course I understand how he felt.
Veterinarians have a sweetheart deal on malpractice insurance, it is cheap because the traditional measure if damages is the dead pet’s fair market value, and they can’t be dropped no matter how many valid claims against them. So the matter is put to rest, and Dr. Defendant, who to this day has never taken responsibility for Bella’s death, or shown the slightest bit of remorse, won’t lose his insurance—nor will his rates be increased. Does he have any incentive to be more careful in the future? Thanks to his insurance company and the spineless lackadaisical state regulation of veterinarians, precious little.
December 19th, 2008
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Add Comment41 Comments
I saw a similar case when I was working in Pennsylvania as an ER vet. The dog's regular vet had not asked to see the packaging on the rat poison and assumed it was the less toxic kind. He never performed follow-up bloodwork, either.
By the time I saw the dog it was too late. He was struggling to breathe with a chest full of blood. We started transfusing his and placing chest tubes but he died on the treatment table. My records were never subpoenaed.
For the record, IMO there's no need to have a patient suffer this kind of death. The veterinarian was negligent, though I'm sure any one of us could have made the mistake at some point in our careers (maybe).
Since about 2000, the ASPCA's poison control has been offering a service every one of you should demand if your pet has ingested a known poison (Advil, rat poison, your anxiety medication, chocolate, etc.). Call the poison control number at home or on your way to the vet (if possible) and open a case file (or ask your vet to do it for you). The poison control center's amazing staff will talk your vet through the ideal approach to treating the poisoning. They can even tell you whether you need to see the vet or not (some things you think are toxins are not and vice versa).
I try to do this in every poisoning case, regardless of whether I think I'm sure of what I'm doing or not. It costs only about $60 and it helps ensure I'm as up to date on the treatment recommendations for every known poison as possible. It saves lives.
Dr. Patty Khuly December 19th, 2008 08:14:39 AM
I want to add that we learned in the first year of vet school that you give Vitamin K to a dog who has ingested rat poison. I knew this already having worked in an emergency clinic, but I'm only half-way through my second year of vet school and it has already come up twice in curriculum and I expect to hear it at least a couple more times before I graduate. Hearing cases like this turns my stomach. Such a simple (and cheap!) treatment that should have saved lives.
Going up against colleagues is hard, but when it's the right thing to do shouldn't it be easier? I've been faced with this already and it sucked, but I'm not sure I could live with myself otherwise.
Ingrid December 19th, 2008 09:31:40 AM
Ingrid; I think it's even harder for veterinarians who have worked with the older generation. We see how older vets have this sense of collegiality and comraderie that makes them loath to speak out against their peers and it makes us feel like we're missing something in the ethics department when we want to scream at something another vet did.
It's hard to explain but I feel that pull, working with two old-timers as I do. I certainly feel their censure when I complain about other vets. They don't think it's collegial.
F--- collegiality if the practitioner's a bad apple--makes us all look bad, I say. But it's much harder to say that in a court of law when you feel like maybe next time it'll be your head on the chopping block.
Dr. Patty Khuly December 19th, 2008 10:25:36 AM
I just completed my first exam in vet school about 2 hours ago (yay!), and I have to say that while we weren't explicitly taught this or expected to know it at this point, it was definitely gone over within the first MONTH of being in vet school, during our lectures on the haematopoietic system that rat poison = vitamin K and it was explicitely stressed that there be follow up bloodwork.
Would there be any adverse consquences in giving the Vitamin K capsule treatment regardless of whether or not the poison was the "less toxic" kind? If not, it seems like a silly thing to even bother pondering, just give it to them!
As simple a thing as it sounds to accurately treat something like this, I would just like to add that EVERYONE makes mistakes, especially in a pressured emergency situation, and it's just unfortunate that this resulted in a lost life. I hope to God that I'm prepared to deal with everything straight out of vet school, but I know that I'm going to need a lot of experience before I know how to deal with most things that come through the door, and I know I will have senior vets double check me on everything I can. Was "Dr. Defendant" a new vet, or just an ignorant one, I wonder?
Tara December 19th, 2008 10:29:02 AM
I wish the States would require retesting to maintain a liscense on a regular basis instead of just the honor system CE method. It would not have to be as comprehensive of difficult as the National Boards. Maybe it would prevent some cases like this. I see too many Vets that just don't keep up.
Hobson December 19th, 2008 11:32:12 AM
What disappoints me most is the kind of arrogance that some vets show when they're not quite sure how to treat something and just take a guess rather than ask other vets or research it a bit. That attitude is so irresponsible and easily ends in misery for both owner and pet.
Circe December 19th, 2008 01:44:30 PM
First, thank you for writing about this experience.
Second, thanks to Dr. Khuly for providing a thoughtful forum in which this can be discussed.
Third, thank you to the thoughtful posters including those in the veterinary community who agree that standards and accountability need to be enforced, in ways they are not.
Re: Does he have incentive to be more careful in the future? "Thanks to his insurance company and the spineless lackadaisical state regulation of veterinarians, precious little."
This is -- albeit in less shrill terms -- what I have been screaming for nearly 5 years, since my most beloved cat and friend was given a massive 30-unit overdose of insulin by the son of his vet -- an inadequately experienced, unqualified and unsupervised young man who should never have been left alone with patients but was. His father, the owner, was fined only $250 by the vet board for the debacle that resulted in devastating brain damage to my friend. His life though not his existence was taken from him. So was mine, as this event destroyed me emotionally in ways I will not bother to enumerate.
But the most maddening aspect of all was the "system" and everything I learned about it.
There is a group of individuals from all over the country who have been through similar experiences and who want to try to do something about this. Frankly, we'd like to see the status of pets change in the eyes of the law. But more immediately, we want veterinary boards to:
Fairly and objectively evaluate cases (which they do not);
Consistently enforce regulations;
Consistently enforce standards of care;
Mete out disciplinary action that is sufficient to provide deterrant from future acts of negligence/substandard care.
If possible, I'd like to also see a day when there is NOT MERELY a stick, BUT ALSO a carrot. That is, provide incentive for practice of GOOD medicine.
When pet owners learn that all vets are not good, competent, and conscientious (or at least not consistently so) it is too late -- because of the universal love of vets and the blind trust pet owners give them until something bad happens. I was one of those people once. No more.
I would really like to hear what you think are actions clients/pet owners can take to improve this. How do we put pressure on the vet boards?
The folks in Texas are doing a great job of bringing scrutiny on the vet board through the press, but this has yet to yield any observable change. In response to the bad publicity, the board has gone on an offensive to try to publicize a historic high number of disciplinary actions last yeat. What they neglect to tell people is that the same high percentage of consumer complaints (90+%) are being dismissed without action. The increased numbers are coming exclusively from more actions being taken against vets for not taking the required number of CE hours, or letting their licenses lapse. They are, IMHO, deliberatly misleading the press and public into thinking they are acting on more public complaints when in fact they are padding their stats with CE violations.
Maryland doesn't even give me clear answers to questions re: % dismissed.
What can we do to make the boards do a better job? I'm concerned about the legal process too, but until the status of animals changes, that won't change much.
Also, I hold vets (or at least AVMA and state VMAs) largely responsible for repeated failed attemps to increase the status of animals in the eyes of the law. They are the big lobby that shows up to fight this legislative change every time it is proposed.
What, from your perspective, should we be doing to bring about change?
Stefani December 19th, 2008 02:34:08 PM
PS -- My story is on my website The Toonces Project
Stefani December 19th, 2008 02:35:13 PM
Can you clarify the dividing line between "grossly negligent" and garden-variety-oops negligent, Attorny LaHart?
Does this definition vary by state, or is it a nationally established standard?
Stefani December 19th, 2008 05:47:53 PM
Very interesting post, thank you for sharing it. I have two main vets that I have been with for 20+ years, my parents used both prior so I have good reletionship and have seen alot. I was also pre-vet in college, did some vet assist, etc..
Anyways, I have seen mistakes some big and some small - I think one area which is overlooked in many practices is the supportive staff - Techs, assistances and front end staff, there are in many practices a large turnover which has a large impact on the many aspects of a clinic including the doctor. Clinic A that I use has very low turnover, few mistakes, efficient amazing follow up and few errors. Clinic B that I use has large turnover, hardly ever followups, scheduling errors and that is the clinic I have seen some big boo boos! why do I even use Clinic B ? I do love the primary vet, so I just schedule him for Farm calls and put up with the ever changing staff, never leave my dogs there! I do at Clinic A when needed and sleep well. Clinic A has an office manager and front end staff who are Techs, they have a breeder liason, they close one day month for meetings and have regular staff trainings to stay up on current research, trends, a tech checks each client in and takes vitals regardless of visit reason, the tech also stays in the room during most of visit at least at the end and does the followup calls, and goes over discharge paperwork, they have really modeled their clinic after a human doctor office where Nurses and other supportive staff work with the doctor to treat the patient. I think this approach drastically reduces chance for error.
The mistakes I have seen in Clinic A could of been avoided if the doctors weren't so overwhelmed doing EVERYTHING - so i guess my suggestion would be to promote better trained, efficient clinic practice as an important part of veterinarian medicine ?
anyways just my long 2 cents or 1 pence worth LOL...
LC December 19th, 2008 08:44:38 PM
Stefani- I've had a look at your website, and I am sorry that Toonces was overdosed with insulin, but honestly in most hospitals I've been involved with, the techs (licensed or no) are given responsibility for all (or most) treatments of boarding animals (unless it is a hospitalized patient). Especially a simpleroutine diabetic case which just requires insulin shots, every place I've worked at has let me (and unliscenced 16-year-old tech at the time) give the insulin shots. As a 16-year old I was allowed to give vaccinations (provided a vet was on premises), give preboarding exams on animals, and I ran the show on Christmas eve that year. I gave all the medications, handled all the receptionist duties, checked on animals in the treatment area of the hospital, and called the Doctor to let her know how every pet was doing. I was the ONLY staff in the hospital. Stressful? Yes. But I was VERY careful.
Of course, even though I was uncertified (which by the way I think you're a bit harsh on your website about unliscenced techs, as I certainly wouldn't have considered myself a completely incompetent 16-year-old -- although truth be told I worked in very respected clinics and was very clearly interested in becoming a vet myself at that point), I was trained in how to read the insulin syringes, what the different types of insulin are and what they're used for, and to make sure the pet eats before giving the shot. And a vet usually had to be in the building, or readily accessible by phone or pager in the clinics that weren't 24-hour ones.
One hospital I worked at had a good policy on insulin, which I think should be adopted in every hospital, is that if unlicensed techs (or techs who are new to the hospital, licensed or not) are allowed to give insulin shots, they should always have some senior (licensed) tech or veterinarian double check the syringe before allowing it to be given to the animal. Both people should sign off on the treatment sheet that the insulin was given, and dosed correctly.
I can't say that I think your vet did right in this situation, especially because every vet knows (or should know) that anything that happens in their hospital is their responsibilty, regardless of who is really at fault) but I think it is also the responsibility of owners (especially owners of diabetic pets or other pets on medication essential to survival) that they either a) board their pet at a 24-hour facility which has a Doctor on call ALL the time, or b) make sure when the pet is dropped off that someone who is knowledgable in giving your pets medication will be doing it. It helps when clients write detailed instructions on the medication, including what it looks like, how much they give, and when they give it, even though it might seem a bit anal retentive it may save your pet's life. Know your veterinarian and know your vet hospital's staff and their qualifications, particularly if your pet is on meds.
Obviously I'm not saying you were at all at fault for this situation, rather that I think hospitals should make a point to inform their clients who is giving their pet's medication and whether a doctor is on the premises or on call 24/7, and to suggest to owners of diabetic pets to board at 24-hour clinics.
Anyway, sorry that was a long comment, just my two cents :)
Tara December 20th, 2008 05:17:29 AM
Tara: Excellent point on how clients should be informed as to what it means when their pets stay overnight--without care. It's a big pet peeve of mine when veterinarians allow their clients to assume that their pets will be cared for overnight when the truth is quite the opposite. The choice to stay at a 24 hour facility should always be offered for pets whose conditions require monitoring.
Having worked as a vet assistant since the tender age of ten, by the age of 16 I was more competent than some certified techs I've met. But that's not really the point. The certification process IS a needed element in every veterinary hospital. This standardization is necessary so that the community at large can be protected. Problem is, not every area has a vet tech program yet. Not every veterinary hospital wants to pay licensed techs more. And the economics of our industry are changing so rapidly that veterinarians don't yet feel comfortable investing in this higher quality labor. It'll happen but none too soon, I'm afraid.
Dr. Patty Khuly December 20th, 2008 07:02:36 AM
I live in S. Florida and brought my 2 shitzus in for a routine teeth cleaning to my vet. After anethesia they both went into chronic kidney failure and 1 of them died. I reported it to the board and of course they dismissed the case. After the fact I found out that this is the 2nd time this vet has had this type of complaint againt him and the 1st case was national news.(U.S.A. Today).I am just at the beginning stages of muddling through this mess of a pathetic system. I need your help and will attempt to contact you on Monday. Or please write me...my email address is plumrc@aol.com.
Carolyn December 20th, 2008 09:21:01 AM
Tara, it simply would not occur to most people that, if the vet says their animal should stay in the hospital overnight, there would be no trained vet tech there, much less that there might be no one there overnight. That's a matter where the responsibility lies 100% with the vet--as Dr. Khuly said, they need to inform their clients accurately.
As for it being okay to have no licensed--or even trained--vet techs, and to allow a sixteen-year-old to give shots and medications, conduct exams, and be the "responsible" person on a holiday--is that a standard of care you would accept in a human medical clinic? And is veterinary medicine, involving multiple species none of whom speak the same language as the vet & staff, more or less complicated than human medicine, involving one species, most of whose members speak the same language as the doctor & staff treating them?
Lis December 20th, 2008 09:54:21 AM
An important side note about ASPCA's Poison Control: HomeAgain microchips have a new yearly subscription service with a low yearly fee that makes the poison control call FREE. Look through your paperwork to see if this applies to you or a client. By having the chip number handy, the $60 fee is waived and you can get advice for nothing.
My older registered pet (older chip) did not have this service, but my new pet (registered last year) got it automatically. Older accounts can be upgraded for the same yearly fee, I think. Check into it if you have chips registered with Homeagain.
Sarah December 20th, 2008 10:51:43 AM
Tara, Dr. K. So the consensus of your comments is 1) It's OK for unlicensed technicians to administer medication to pets. This leads me to conclude that it's OK for unlicensed technicians to also administer opiates and similar meds that require a DEA license. 2) You again shift the responsibility of any unfortunate outcome to the companion guardians. Am I responsible for the death of my toy poodle that was misdiagnosed and mistreated by two GPs, a PHD internist and a board-certified surgeon? Should I have researched his symptoms and suggested to the boarders what they should test my pet for? Well, if I knew that they were not competent enough to correctly diagnose him, I WOULD HAVE DONE IT! I simply trusted their expertise which was completely absent! I learned a hard lesson, but it opened my eyes--I KNOW NOW what to do if my remaining two toy poodles have serious health issues--referral to a teaching veterinary hospital! Do I have a lawsuit case? Absolutely! Am I going to file a vet mal lawsuit? You bet ya! I already have! http://alabamavetboardwatch.110MB.com
Fotini December 20th, 2008 10:01:01 PM
Dr. Khuly & Attorney LaHart, Thank you for the forum & imformative post. Albeit, I have been 9 days without electricity in NH and just up & running tonight.
First, thank you for dirst citing that "truth" is the absolute for libel & defamation. Thankfully, I have not been intimidated by that suggestion and have pushed forward with sharing the story of my own dog's gross negligence & malpractice. Nothing will change what happened in October of 2006, but surely I can work every day of the rest of my life to attempt change & recognition for others.
You also cite beyond reasonable "negligence", surely that can't be argued based on the disregard for Vet 101 standard of care. My goodness, as a pet-owner only, I would have known regarding followup & prolonged administration of Vitamin K. But perhaps that is because my own breed Scottish Terriers can be afflicted with a bleeding disorder vonWillebrand's Disease ---which now has a successful genetic test.
Do I blame your client for settling for $4500 in consideration of his current living situation & family?? Not at all, in fact, I find it most amazing that he was brought up on charges by the state board and fined the paltry $750.
To compare how low the "bar" is in my state of NH, 'only' a select few are ever fined/charged to make the "appearance" of statistics. After all, if a clinic can deceive an owner and keep a hopelessly dying pet beloved by her owners alive for a week, unable to eat, and then willfully break the LAW by administering INHUMANE euthanasia whilst in the owners arms...what can possibly get much lower?
Yes, indeed, it is the compassionate, talented professionals that call for raising the bar to what it should be.
Winter camping for 9 days without comfort of electricity , inside my own home, would never hurt, nor cause the emotional, mental, and physical harm to myself or my family that the one week and "final minutes" of my dog treated without respect and literally burning on the inside fully conscious to death. This group of so-called professionals had no respect for either animal or HUMAN life.
thank you again, Barbara A. Albright "Pocket's Story from NH" http://walnut-hill.bravehost.com
Pocket's Story from NH December 20th, 2008 11:06:22 PM
Entire law review articles have been written on the difference between simple negligence and gross negligence, but basically simple negligence is failure to use reasonable care under the circumstances, and gross negligence is failure to use even slight care, “an act or omission that a reasonable, prudent person would know is likely to result in injury to another." Hope that helps!
Marcy December 20th, 2008 11:13:02 PM
Thank you, Marcy, for the clarification.
Tara, a couple of responses to your comments on my site.
First and foremost, if the veterinarian in charge had done ANY of the things you suggested (i.e., been around or had another vet on the premises to review the dose and syringe before it was given to my cat, AND/OR told me they had no one there overnight and I should take Toonces to a 24-hour place), I feel confident that the disaster would have been averted. But he did not do either of those things.
Moreover, his staff indicated to me that they board their diabetic patients "all the time" -- so often that they had a whole fee schedule worked out for it. Obviously, I believed that therefore they were very experienced at this, and believing that, I also believed that the person(s) caring for him would be very experienced at this. That's what their statements led me to believe. I was misled. They were AAHA too, and they didn't have one single solitary licensed technician on staff, which means that EVERY TIME patients were left there - Toonces or anyone else -- overnight or on the weekend when a vet wasn't there, those patients were being left with an unlicensed, unsupervised persons.
As for what you say about diabetic pet owners should always board their pets as a 24-hour hospital, I now agree with you. I have contributed to an article on Wikipedia about boarding diabetic pets that says exactly that very thing. However, I did not know that at the time, precisely because Toonces had only been diabetic for a couple of months, and more importantly because a) I had left him there for glucose curves before and things had been fine -- they had asked me to do that, and b) they reassured me that they do diabetic boards "all the time" (They being his front desk staff). In hindsight, do I wish I had asked more questions about who would be caring for him that weekend? Do I wish I had taken him to a 24-hour place? Do I wish I hadn' left him there at all? YOU BETCHA. But as Lis pointed out, (and as you said also), they did not tell me that and I would have -- as an inexperience layperson -- had no way of knowing that was something I needed to as about and insist on. I also had no idea he would be left entirely alone there for over 13 hours at a stretch -- which, according to the records submitted to the board, it appears that he was.
But as you said, that doesn't make me responsible for what happened to him. I am a layperson, new to diabetes at that time. I took things on "faith" wih this vet. I should not have done that, but I didn't know that then. That, however, doesn't absolve them from their serious breach of professional responsibility.
With respect to licensed technicians and my statements about that -- "unlicensed" technicians always seem to get defensive on this point. But hear me out with an open mind:
You consider yourself competent. You know how much experience you've had. You've probably seen lots of licensed techs and even vets mess up things you would have done right. You've met many very competent and skilled "unlicensed" techs. No doubt, that's true -- I know some myself, two are friends of mine.
BUT . . . . When I, as a client, walk into a vet's office, and someone in scrubs comes up from the back to take my pet, I have NO IDEA what years experience they have, how much training they have, and how skilled they are going to be at doing whatever the vet is asking them to do to my pet. They could be very experienced and skilled though unlicensed. True. BUT THEY COULD ALSO BE someone's kid on summer break. Or, someone on a jail release program with little prior experience. I will not know one way or the other.
The license, while not a guarantee of flawless "nursing" care, gives me the ONLY objective evidence I am going to get that this person has substantial formal training in the basics, and considers themselves a veterinary professional.
FWIW, depending on the state you lived in at the time, many of the things you were allowed to do as a 16-year old (or at any time as an unlicensed tech) may have been against state regulations. Most certainly, if an unlicensed technician does certain things without the supervision of a vet, that is a violation of state regulations. The fact that something didn't go wrong doesn't make it right.
Again, I am not saying there are no competent unlicensed techs. I know some myself. But conceding that point doesn't one whit change my position on the need for licensed technicians, or my insistence on them for my own pets, as well as my "campaign" to get others to do the same.
I wish more vets were willing to PAY for their promising unlicensed staff to get the training they need to become certified, and then PAY the higher wages that certification would bring. But most aren't. Now, for obvious reasons having to do with personal experience, I make a point of going to one of the few vet hospitals in my area that does do that. And I pay more for it. Happily.
Stefani December 21st, 2008 12:58:17 PM
I just completed my first exam in vet school about 2 hours ago (yay!), and I have to say that while we weren't explicitly taught this or expected to know it at this point, it was definitely gone over within the first MONTH of being in vet school, during our lectures on the haematopoietic system that rat poison = vitamin K and it was explicitely stressed that there be follow up bloodwork.
Would there be any adverse consquences in giving the Vitamin K capsule treatment regardless of whether or not the poison was the "less toxic" kind? If not, it seems like a silly thing to even bother pondering, just give it to them!
As simple a thing as it sounds to accurately treat something like this, I would just like to add that EVERYONE makes mistakes, especially in a pressured emergency situation, and it's just unfortunate that this resulted in a lost life. I hope to God that I'm prepared to deal with everything straight out of vet school, but I know that I'm going to need a lot of experience before I know how to deal with most things that come through the door, and I know I will have senior vets double check me on everything I can. Was "Dr. Defendant" a new vet, or just an ignorant one, I wonder?
برامج
khaled December 21st, 2008 02:43:39 PM
PS - Ironically, the hospital I go to now, where they use licensed technicians and stratify duties appropriately, is the same hospital I used to go to before I moved across the river from Virginia to Maryland. In other words, although I did not know it at the time, prior to my move I was already going to a place where they did this, and if I hadn't switched vets with the move, my boy would never have been rendered brain damaged by a vet hospital administered overdose. The irony of the fact that I now drive 45 mins to 1 1/2 hours to go back to the place I used to take my pets before I moved has not been lost on me, nor the tragic senselessness of what happened to my boy.
An educated consumer is a quality vet hospital's best advocate. When you KNOW the difference, you know what to value. Sadly, experience can be a very cruel teacher.
Stefani December 21st, 2008 02:49:07 PM
I often ponder a reasonable alternative to licensed staff or "national certification" that would be applicable in any state. It's too bad that when hiring a bright, ambitious, capable person to perform technician duties, that on-the-job training might not also include an hour or two of basic theory a week. Then upon completion take a basic version "tech exam". Stef, I think I perused some 6mo-1 yr. certificate courses offered in your state of MD??
My only "beef" with education with this particular connection is involvment with the use of animals as live "teaching tools" in an unethical, cruel, and abusive manner. Do I think actual comprehensive training can be accomplished in a positive, correct, and humane way?? YES, I certainly do!! Along with many human physicians, veterinary colleges, nursing programs, and like, that agree and uphold that stance.
When it strays outside the "boundaries", no one benefits: not the student, the teacher, and certainly not the "living teaching tool".
Pocket's Story from NH December 21st, 2008 07:57:31 PM
Barb, You said: "when hiring a bright, ambitious, capable person to perform technician duties . . . "
A vet should never hire a bright, ambitious, capable person to perform "technician" duties if that person is inexperienced and is not licensed. If they are unlicensed, the ONLY thing they should be allowed to do is veterinary ASSISTANT duties, which is another thing altogether. As to the idea of a couple of hours of theory a week over time . . . what about all the pets that they incompetently lay hands on in the process?
My feeling is that my pets are not teaching tools, to be practiced on for the sake of "learning." I don't pay for that. That's not what I expect when I walk in there.
I'm betting you agree.
Stefani December 22nd, 2008 10:12:33 AM
Stefani, I do agree. It took me a long, long time to separate my resentment of "Pocket" being utilized as a "teaching tool" for the sake of education of Grat Bay Community College's vet tech program. It made me feel creepy that technician students were learning all the WRONG things in the moral, ethical and compassion department.
And I have confused what should be termed "titles and duties". If a clinic is going to hire unlicensed, uneducated personnel, it behooves them and the patient/client to limit duties until a grasp of theory explains why certain protocols are followed in every aspect: handling, laboratory, vaccines, etc.
In previous blogs, I have become aprised of several "technician" duties that make me extremely uncomfortable; ie: such as anesthesia . We wouldn't begin to trust a 2 year OR 4 year degree in human medicine...but this apparently is allowed to various degrees with animals. Sure, a tech can do a darn good job with monitoring equipment and vitals during surgery/anesthesia, but preparation & administration responsibility?? Yikes!!
And to all the proficient techs, this is not meant to insult. Ask yourself, what you would expect with a human family member in the operating room.
Barbara A. Albright
Pocket's Story from NH December 22nd, 2008 01:52:40 PM
Sorry for the typo: Great Bay Community College, Stratham, NH (new name)
Pocket's Story from NH December 22nd, 2008 01:56:51 PM
Barb, you know I pretty much agree with you so forgive me in advance for harping on a point ad nauseum, but re: "a clinic is going to hire unlicensed, uneducated personnel, it behooves them and the patient/client to limit duties until . . . "
It doesn't merely behoove them. Its actually REQUIRED in most states that certain duties may ONLY be performed by licensed technicians. It's not "until" anything. If you don't have a license, there is stuff that you not only shouldn't be doing, you are legally not allowed to. It doesn't matter whether you've learned it on the job or not. You have no business doing it without a license.
I keep coming back to my main point: You the client, have NO way of telling how well trained an unlicensed person is. That is why the license is so important. And at least most state veterinary regs recognize that certain medical tasks should ONLY be performed by licensed personnel.
The fact that vets break these rules all the time, in the interest of delegating work to individuals they can get away with paying a pittance, just really gets my goat. All due respect to goats, of course.
Stefani December 22nd, 2008 02:47:01 PM
"F--- collegiality if the practitioner's a bad apple--makes us all look bad, I say. But it's much harder to say that in a court of law when you feel like maybe next time it'll be your head on the chopping block." Dr. K., no disrespect intended, but this is the prevalent feeling that has held back your profession for DECADES....the response to the old-timers should be "we will never gain the deserved respect when the bad apples continue w/o accountability & how can we ever compare or deservedly use our title "Doctor"??
It is still lumping together the honest mistake that can be reasonably addressed by Joe Q. Public with the blatant, fraudulent, and sub-standard care that you most rightly complain about. And as long as that is so, the profession will hardly rise above the good 'ole boy network of 'blue collars' and long tossed aside (legally) in the human setting.
Stef, sorry, you are far up on different state VPA's than I am!!! My state of NH doesn't even address the issue, surprisingly, since they seem to hold the education of techs in such "high regard" by sponsoring and subsidizing the "program" (along with all the poor client/patients doling out money unwitttingly).
After all, in my state, "I" can legally practice Veterinary medicine on occassion without renumeration---let's see how fast that clause gets removed by legislation!!
Barbara A. Albright/Chester, NH
Pocket's Story from NH December 22nd, 2008 03:54:43 PM
Barbara: Don't disagree. All I'm saying is that human nature is a factor at the time of reckoning. It takes a lot of courage to be the only one who speaks out in a culture of protectionism. Not everyone can be that courageous.
Dr. Patty Khuly December 22nd, 2008 04:32:09 PM
To be a vet takes a HEAP of courage, and please poll your fellow colleagues to see if they agree with that.
And as I am learning, sometimes it starts with 'one', and I believe your family has instilled the courage of advocacy, just as many others in your profession must also have likewise! After all, you have sponsored this blog and taken lots of heat without crumbling.
Barbara A.
Pocket's Story from NH December 22nd, 2008 07:55:46 PM
Tara-to answer your question, no-this was not a vet that was new to practicing-he has been liscenced in Florida more than 20 years, and my client brought the empty boxes to his office, so he knew exactly what kind of poison Bella ingested. What is so tragic about this case, and what still bothers me to this day, is that it would have been so damn easy to save Bella's life.
Marcy December 23rd, 2008 12:16:47 AM
Marcy, I read that this was settled, but do you know or went far enough to find out what the "defense" (or excuse) was going to be? Obviously it couldn't be "inexperience" with 20 years of practice under his belt.
Barbara A.
Pocket's Story from NH December 23rd, 2008 03:01:57 PM
Amazingly enough, the lawyers representing him found a vet that was willing to testify that his conduct was not negligent.
Marcy December 24th, 2008 02:57:52 PM
marcy, Thanks for responding. It may be amazing to you & me, but shouldn't be all that surprising!! Eeegads, what a world.
Barbara A.
Pocket's Story from NH December 26th, 2008 08:01:48 PM
I wish I known a good animal lawyer a few months ago in 2008. My dog is now blind in one eye due to veterinarian malpractice. My dog's eye injury started as a simple, common eye abrasion. I took her to the vet because her eye turned reddish and was irritating her. The vet put the dye in her eye but never examined it under the light to look for a scratch. I kept asking if there was a scratch, and she and the vet tech kept saying no. I figured there was a special way for vets to tell without using the lights.....I feel stupid for thinking that now. The bad vet gave me neo/poly/dex which is never ever supposed to go into an eye with an abrasion because it causes an ulcer and ulcers explode. My vet said to come back for a check up in 7 days. In less than 7 days, my dog's eye exploded right in front of me and she screamed. Blood shot out of her eye and went everywhere. I rushed her to a good vet. The bad vet was 'out to lunch' and didn't want to see my dog. They were supposed to call me back but never did, probably because they knew they were in trouble. The good vet said Porky had an eye ulcer and it exploded. This was on a Satruday. I had to keep her on eye drops and pain meds til she saw a really expensive eye specialist first thing monday morning. I went to the eye specialist several times. The eye dr kept saying Porky would get some visionsback. $1500 later she lost all her sight and her eye is horribly scarred. She has fallen into the pool twice and runs into things. She can't find me when I call her (her one 'good' eye has cataracts). I cry for her all the time.
I wish I had a lawyer to help with this. I did contact one lawyer that said she would help, but then she never contacted me again. Now this bad vet is just going along, enjoying her life, probably harming other animals as well. I would have taken her to small claims court, but I knew she would have a lawyer and I would be no match against a vet's lawyer. I do have 2 other vets that say my dog lost her vision because of the neo/poly/dex. We need some good lawyers out there that are willing to take on cases like these.
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