Can they win?

Countless articles have appeared in this column and elsewhere in DVM Newsmagazine covering the topics of veterinary malpractice and the threat of this type of lawsuit. Also, our office receives many calls concerning the threat of legal claims arising from alleged medical and surgical negligence. Then, just recently, I received a letter from a practitioner that made it clear to me that many veterinarians don't understand the all-important difference between committing malpractice and getting sued for malpractice. The two are completely different.

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Let me illustrate this point by making a personal reference. Because I am an attorney, I'm regularly asked lawyer questions by my three children. These questions ordinarily begin with: "Dad, can you sue someone for ..." The answer is always the same: Yes. You can sue someone for virtually anything that he or she has done (or hasn't done). What I explain to my boys is that their question should be: "Can you win?"

What's the difference?

What is this difference, and how does it apply to veterinary medical lawsuits?

The distinction is this: The American legal system is akin to some sort of mandatory debating event that one might face in high school. The opponent challenges you, and you are not allowed to decline the challenge. The winner is the side with the most cogent and persuasive argument and the most carefully documented and well organized set of factual supporting material.

So, the public can pretty much sue for anything. The news is full of lawsuits filed by inmates because they object to the type of peanut butter served by their prisons, as well as lawsuits filed by burglars against homeowners because they tripped and were injured while robbing a house. Sanctions against people who file frivolous lawsuits are a fairly embryonic concept. So, for the moment, figure your clients can sue you for malpractice regardless of whether you actually slipped up.

Jumping through hoops

Therein lies the poorly misunderstood dichotomy. Most veterinarians are fairly comfortable with what it takes to avoid committing malpractice. Many are extremely unfamiliar with all the hoops they must jump through to avoid a malpractice lawsuit.

Malpractice avoidance is a skill that should be practiced by all physicians at all times. Due time and care spent in the clinical setting, familiarity with the medicines and techniques to be applied in the treatment of illness and general discipline and organization are all part of the task. All these steps are involved in the process of "doing your job correctly."

Avoiding malpractice lawsuits is different entirely. By having used due-care and skill in your practice, you have merely minimized the likelihood of losing a malpractice lawsuit. That is, if the client comes after you with a vengeance after experiencing a bad outcome, then having done a good job means you probably can win. Avoiding malpractice lawsuits is much more involved than just doing good practice. It is the art of keeping that client from coming after you, period.

Why would any veterinarian even give suit avoidance a second thought? As explained above: In this country, you can pretty much sue for anything. And when you sue a veterinarian, she has to take time off from work to appear at hearings and depositions. She has to spend time contacting her insurer-appointed lawyer. If the case involved multiple doctors treating the same animal, then they all lose work time. Lawsuits, even frivolous ones, are embarrassing, and they cost money due to lost productive time.

Strategies to avoid lawsuits

Therefore, in addition to performing the healing arts capably, we need to remember what to do to avoid lawsuits by those who are more angry than rational. Here are some tips:

• Exude compassion. A bumbling veterinarian with a warm and fuzzy bedside manner is far less likely to be sued than a cutting-edge doc with an attitude. You can take this advice to the bank.
• Keep owners posted. Even with difficult clients, we are far better off making and taking a load of phone calls than ignoring or stonewalling as a case deteriorates. The more interplay there is between the client and the veterinarian, the less likely it is that the pet owner will suspect that the doctor is trying to hide some defect in treatment.
• Turn on your guilt radar. There are a million instances in which human patients and pet owners have sued doctors because they are attempting to "sue away" some internal personal guilt. People have a natural tendency to want others to take responsibility for their errors and failings, (real or imagined).

Clients may sue you because they actually feel guilty that they waited too long to seek treatment; because they failed to get timely vaccinations; because they allowed the pet to get injured in the first place; because they didn't spay a pet that subsequently developed a fatal pyometra.

The lawsuit avoidance tip here: Explain that no one is at fault (even if they are) and nothing else could have been done (even if the client could). Beating up a pet owner, even if he may deserve it for demonstrating pitiful stupidity, often proves to be a self-defeating undertaking.

• Refer jerks. If you have a client who is just generally difficult, then it is very often a wise idea to strongly recommend referral of any case with which you are not entirely comfortable. People who present problems under routine circumstances have the tendency to turn into nightmares when serious problems ensue.

• Keep the words simple. Doctors of all types have a difficult time speaking to the public in terms that they can understand. Others manage to use simple explanations but in doing so appear condescending or patronizing. It takes some practice to avoid speaking in medical jargon when talking with a client. Be advised: Clients have a nasty habit of interpreting big words and technical terms as a smokescreen to cover up incompetent treatment.

Dr. Allen is a partner in Associates in Veterinary Law P.C., a law practice specializing in business and legal counsel for veterinarians and their families. He can be reached at www.veterinarylaw.comor call (607) 648-6113.