Top risk-management strategies every equine practitioner needs to know.
By Denise Farris, Esq.
Veterinary medicine can be an imprecise science. In contrast to human medical care, you deal with a mute patient who can’t verbally communicate his symptoms. When diagnosing and treating your patient, you must rely on descriptions by owners, which can be incomplete or flawed. (For more on the fallibilities of client reporting, see Client Corner on page xx.)
Under these circumstances, undesirable consequences sometimes occur, despite your best efforts. Your equine patient might fail to fully recover from an injury or illness. You might lose, or in the alternative need to euthanize an animal. These consequences can be particularly catastrophic for the equine veterinarian, where the value of the animal is usually significant.
Further, many owners now view their horses as “companion animals,” similar to house pets. This in turn opens the door for higher damage recovery in legal actions, through claiming an owner’s emotional distress. All of these factors translate into higher professional-liability premiums.
Despite the daily risk of malpractice exposure, there are many steps you can and should take to manage this exposure. These include implementation of standard daily operating procedures, good recordkeeping, optimal client communication and industry efforts for statutory reform. I’ll detail each of these steps on the following pages. But to manage something you must first understand it, so I’ll start by defining what we mean by “malpractice.”
What is Malpractice?
The term “malpractice,” from a legal standpoint, requires proof of certain elements. These elements, paraphrased, are: the existence of a duty by the veterinarian to treat the animal; a failure to meet the standard of care expected, as measured against practices in either that location or within that particular discipline; injury or death resulting in the loss of use, diminished value or death of the animal, and causation (evidence that the damages were directly caused by the negligence of the vet and not some other intervening or contributory cause).
These factors are called the “prima facie” elements of a lawsuit, and must be pled with enough particularity in the initial petition to avoid an early motion to dismiss the lawsuit. While somewhat different, these same elements are at play whenever a disciplinary complaint is evaluated. Where malpractice is alleged, a disgruntled owner can elect to file a professional disciplinary complaint against the alleged offender, a lawsuit for civil damages or both.
There’s nothing as unpleasant as being the accused in a malpractice action. You should therefore implement practices by which you either avoid such allegations, or permit an early defense and dismissal of frivolous claims. However, many malpractice lawsuits must run the full course in court simply because of the poor recordkeeping practices of the accused practitioner. Most practitioners agree that they would’ve kept much better records if they’d known they’d be in court. So isn’t this a great time to assume that possibility and start writing everything down?
Personal Risk-Management Tools
You can’t eliminate the possibility of being sued by a client, but you can manage the risk that the case will go to court by implementing two strategies into your day-to-day practice routine. Here’s how.
* Keep a professional-development record. On an individual basis, one of the most important elements for managing malpractice is to keep current with industry standards in terms of professional development. While most practitioners accomplish this, many don’t keep a concise record of annual activities they’ve undertaken to do so. This record should include: 1) a report identifying all continuing-education courses you’ve taken in a year by dates, course title(s), location and credits; 2) a report identifying all industry journals you subscribe to and review on a regular basis; 3) a report identifying all industry conferences you attend, articles you write, or any other factor which identifies your expertise and continuing attention to state-of-the-industry developments. (While you should develop this record yourself, see the “Professional Development Record” form on page xx to get started.)
Tip: Not only is this record a great risk-management tool, but it also is invaluable in marketing your practice. Most clients respect the effort you make to excel in your discipline and will often use your medical expertise to sing your praises to potential referrals.
* Keep daily written records. Unlike the small-animal veterinarian who typically practices out of an office, you’re often required to travel to your equine patients. Many use this as an excuse to skip detailed recordkeeping. However, good recordkeeping is often one of the most important factors in risk management. By doing so, you’ll:
> Create a master sheet that quickly reminds you of the animal’s treatment history, known medical conditions or allergies, etc.
> Address presenting symptoms and treatment in a more deliberate, formalized process than you would otherwise.
> Create a contemporaneous written record of the presenting symptoms, as communicated in the words of the owner.
> Create a contemporaneous written record, authored by you, as to the presenting symptoms, conditions and treatment.
> Educate the owner as to reasonable expectations concerning diagnosis, treatment, follow-up and remaining uncertainties beyond your control.
> Establish that your care was in accordance with industry standards within that area or discipline.
> Create a document that, in many instances, will be instrumental in the early dismissal of a disciplinary complaint or lawsuit.
You can streamline daily recordkeeping by creating standardized forms (i.e., a Patient Summary Form and a Standardized Treatment Form), using computer software, using carbonless memo pads, and/or by dictating records rather than writing them down. Here’s a rundown of each recordkeeping method.
* The Patient Summary Form. Each equine patient you treat should have a master record, which generally summarizes the animal’s medical history. (See the “Patient Summary Form” on page xx to get started; modify this form to meet your own particular practice needs.) Review the patient’s medical-history sheet and, if possible, take it with you to the treatment area. This will allow you to reference and update the record at the time of treatment. (For technology that will help you tote and update patient records in the field, see Practice Pointers on page xx.) This sheet should include:
> Information concerning the owner (i.e., name, address, telephone number, fax number, Social Security or Federal Employment Identification Number, etc.).
> Whether there are multiple owners of the horse. As horses are sometimes owned by multiple parties, be sure to identify all owners in the event a life-and-death situation affects the animal. If this occurs, be sure to secure a written statement that the owner you’re dealing with has authority to make these decisions on behalf of all other owners.
> Information about the horse (i.e., name, breed, sex, age and owner’s estimated value, as determined by purchase price, insured value or other factors). This information, when provided before any issues arise, can be an important record in establishing the actual worth of the horse before litigation ensues.
> Any unique characteristics of the horse from a treatment-history perspective (i.e., prior history of colic, founder or laminitis; prior surgeries; known food, drug or other allergies; history of abuse or neglect; history of breeding problems, etc.)
* The Standardized Treatment Form (Call Sheet). This form, at a minimum, should identify: the date; time of initial call; time of arrival at destination; owner or contact name; animal name and information; presenting complaints as identified by the owner, preferably in the owner’s own handwriting; diagnosis; treatment provided; follow-up care to be provided by the owner; date of next examination, if required, or referral to a third party; and a generalized disclaimer. (See the “Call Sheet” form on page xx to get started; modify this form to meet your own particular practice needs.)
* Computer software. Practice-management software is available to help you keep track of patient history, treatment, etc. You can also input and update customized forms. For a listing of several software companies to get you started, see Practice Pointers on page xx. Caveat: Print out a hard copy of each form at the end of each business day, and make backup files on disk, in case your hard drive crashes.
* The carbonless memo pad. This pad should include the same information listed in the Standardized Treatment Form. However, since this pad is essentially a blank page, you’ll need to hand-enter all of the headings and information. For convenience, ask your local printer to create a carbonless form that includes the pre-printed headings identified above. After completion, pull off the top copy, give it to the owner, then file the bottom copy in the client/patient file when you return to your office.
* Dictation. If you’re reluctant to complete the necessary paperwork by hand, you can opt to simply use dictated notes concerning the treatment. You can buy a small, handheld Dictaphones from any office-supply store or department store for less than $25. Then you have your dictation transcribed by a staff member or outside transcription service. (Look in the Yellow Pages under the “Transcription Service” or “Temporary Secretarial Service” heading.) The disadvantage of this system is that you won’t have an immediate record to give to the owner. However, that said, the dictated daily record is still a powerful tool capable of defeating a complaint or lawsuit, as measured against months-old memory and an old bill.
* The calendar-entry follow-up. When completing and filing the forms outlined earlier, you should also get into the habit of immediately docketing a calendar entry reminding you of required follow-up. If no formal follow-up is required, you might perhaps docket a simple courtesy call to check on the patient’s status. Although unnecessary, this type of call represents that personal touch and value-added service that really impresses an owner and distinguishes you from your competition! In addition, this type of personal follow-up might, at some future date, be the critical factor in defeating owner thoughts of a formal complaint or proceeding. While often ignored, the respect, trust and relationships built upon these extra personal touches makes it less likely a client would be willing to sue you.
Proactive Insurance Management
As an equine practitioner, you need to understand the importance of professional-liability coverage, and frequent and ongoing communication with your carrier as to the nature of your practice. Otherwise, you’ll ignore an important tool in the arsenal of malpractice defense.
Why do you need insurance, particularly when it seems so expensive? First, in completing the initial insurance application, you’re required to think about and define the nature and intended scope of your business. This invaluable business-planning tool is often overlooked in the rush to get your practice up and running.
As you complete and discuss the application with your agent, seek the agent’s guidance regarding your planned activities, the agent’s perceptions as to unnecessary risks or exposures you can avoid, the agent’s suggestions as to coverages and limits and, most importantly, the agent’s identification of standard policy exclusions and available riders to put those exclusions back into the policy.
Policy-exclusion analysis can be detailed and confusing. Ask your agent for a list of policy riders and an explanation of each rider. Understand that if coverage is provided only in an insurance-policy rider, it isn’t part of your standard coverage. If you feel you need the rider coverage for your particular practice, get it. It’s usually a wise investment.
Next, note that in developing a rapport with your agent and familiarizing your agent with your daily operating procedures, you may be able to position yourself to request some type of premium discount. Insurance companies are interested in representing clients with strong risk-management practices in their businesses. Such practices equal lower exposure to insurance claims and a corresponding ability, if necessary, for insurance defense counsel to secure early dismissals of frivolous lawsuits.
Thus, the stronger and more detailed your risk-management plan, the more likely you’ll qualify for a premium discount. Therefore, provide your agent with a detailed description of your business, a copy of any risk-management procedures you follow and a copy of any forms you use that apply to your risk-management activities (such as those outlined earlier).
The final, and most significant benefit provided by your professional-liability coverage, is that it provides two critically important elements: cost of defense and damage coverage. In many instances, a malpractice case may be filed but may ultimately be dismissed in pre-trial motions, or taken to trial with a verdict in favor of the practitioner. While legally vindicated, the cost of legal representation can often run anywhere from $5,000 to $25,000 or more. Your insurance policy typically covers these “defense costs” within the limits of the policy. In most instances, the value of this benefit vastly exceeds the total amount of premiums you pay over a course of years.
In addition, if you’re ultimately found at fault, the policy, in addition to your defense costs, also cover the judgment assessed by the court or jury, again within the policy limits and subject to the amount of legal defense fees paid. For these reasons, it’s vitally important that each practitioner carry liability coverage in amounts sufficient to adequately cover the highest level of damage exposure, as well as litigation costs.
Proactive Group-Risk Management
As a collective group, veterinarians are capable of exercising a tremendous amount of economic and political clout. This is particularly true in the equine industry. Every state–except for Alaska, California, Maryland, Nevada, New York and Pennsylvania–has recognized the economic significance of the horse industry and has enacted Equine Activity Liability Act statutes recognizing the unique characteristics affecting professionals who deal with horses.
Thus, the veterinary industry, through coordination with such national groups as the American Veterinarian Medical Association, should aggressively lobby to enact veterinarian malpractice legislation barring malpractice actions unless expert pre-certified as exhibiting evidence of negligence. These types of statutes have been in play in most states in the human medical malpractice arena. The certification typically is required in the form of an expert affidavit which verifies that the expert: 1) has reviewed the records; and 2) has identified evidence that the alleged defendant failed to exercise that standard of care reasonably expected in his/her profession. This statutory enactment has significantly reduced the number of frivolous medical malpractice lawsuits filed.
The effect of this precertification is significant in reducing frivolous lawsuits. In most instances, secural of such an expert affidavit is often difficult. Professionals who live in glass houses don’t like to throw stones at their colleagues. Thus, the requisite affidavit is typically not secured unless: 1) The lawyer uses a “hired gun,” who makes a living testifying against his or her professional colleagues and thus is subject to strong cross-examination as to the neutrality and objectivity in her/her testimony; or 2) the facts are so dramatic that no practitioner could honestly reach any other conclusion than malpractice was committed. In that situation, the practitioner’s insurance company and defense counsel should endeavor to quickly and economically settle the suit.
Similar statutes exist in a limited number of states for actions against other professionals such as engineers, architects and other design professionals. Called Certificate of Merit statutes, they operate under the same principals and have the same effect in reducing frivolous lawsuits. The Certificate of Merit statutes propose that lacking an affidavit of sufficient evidence, the malpractice action cannot be filed.
The enactment of such a statute for veterinarians should be an attainable goal. Most state legislatures are already familiar with the concept through human medical malpractice / tort reform. In addition, with 46 states now enacting some form of the Equine Activity Liability Act, the legislators are also generally familiar with the horse industry in general, its economic importance, and the difficulties in working with these large and unpredictable patients. Accordingly, the equine-veterinarian community appears to be in a particularly strong position to spearhead national legislative reform for its industry, as well as the veterinarian community as a whole. Reform is necessary. The entire industry suffers from frivolous lawsuits through higher insurance premiums, which are driving away those contemplating a career in equine veterinary medicine at a time when vets are badly needed to serve today’s horse-owning client base.
While it’s never pleasant to contemplate malpractice, such analysis remains an invaluable business-planning tool. By contemplating worst-case scenarios, you can develop internal business forms and practices that keep you out of trouble. You can effectively manage your malpractice exposure by this kind of review, as well as keeping your skills current, implementing good recordkeeping practices, keeping clear and consistent communication with your clients, maintaining adequate insurance coverage and close contact with your liability carrier and supporting efforts for national tort reform within the veterinarian industry. These tips should enable you to enjoy trouble-free dreams after a long day of caring for your large and grateful patients. (bug)
Denise E. Farris is a litigator practicing equine, insurance defense and construction law in the Kansas City area. She’s an avid equestrian who competes in endurance and competitive-trail competitions. She’s a nationally known equine-law attorney and, in addition to writing numerous articles, has been a featured speaker at various local, state and national symposiums, including the National Equine Law Practitioner’s Conference, the National Farrier’s Convention, the National Multiple Trail Users Conflict Symposium and the North American Trail Ride Conference.
DISCLAIMER: This article and draft forms provide general coverage of their subject areas. It’s provided free, with the understanding that the author, publisher and/or publication don’t intend this article to be viewed as rendering legal advice or service. If legal advice is sought or required, the services of a competent professional should be sought. Forms should be modified to meet the practitioner’s individual practice and reviewed by a local attorney before use. The author and publisher shall not be responsible for any damages resulting from any error, inaccuracy or omission contained in this publication.
EVM SPRING ’05
© Denise E. Farris, Esq. All rights reserved. This article may not be reprinted or reproduced in any manner without prior written permission by the author. Contact: The Farris Law Firm, LLC, 20355 Nall, Stilwell, KS 66085; 913-685-3192; fax 913-685-3292; e-mail, firstname.lastname@example.org.