Defending a state-board action has far-reaching costs

Are you facing a state-board inquiry? Think you can handle it alone?

Think again.

Then get yourself a good lawyer.

That's the advice of Linda H. Wyner, a California attorney and co-editor of the American Veterinary Medical Law Association (AVMLA) Newsletter.

She should know.

Wyner has defended DVMs in board hearings in 14 states, coast to coast.

"Even those veterinarians who have gone to law school are likely to find they aren't fully prepared to navigate the shoals of litigation when it comes to state boards," she says.

Wyner has noticed an uptick in the number of state-board cases in the last few years — to the point that it's become a busy niche for her law firm, LHW Law Group in Walnut Creek, Calif. Many cases come to her through her consulting work for a large national chain of veterinary hospitals. For cases outside her home state, she retains and advises local counsel for DVMs and in some cases obtains temporary admission to practice in those states, allowing her to be present to assist the defense at board hearings.

To what does she attribute the increase in state-board actions?

"It seems to go hand-in-hand with an upsurge in malpractice suits," Wyner says. "News of that, plus media attention given to what animal-rights and welfare activists are doing, makes consumers more aware of the standard of care they think veterinarians should be held to. Also, state boards, because they're usually underfunded and overtaxed, know they can't investigate every complaint, so they might cherry-pick the more high-profile cases — not to besmirch the profession or make it harder for veterinarians to practice, but to make it more obvious that they're doing their job of policing the profession."

Why should DVMs hire a good attorney as soon as they are notified that a complaint was filed against them?

"Veterinarians are honest, trusting people, many of whom seem to believe that, 'If I simply tell board investigators the truth, answer all their questions and tell them everything I know, everything will be all right and they'll leave me alone.' That's unwise and naïve," Wyner says.

"Many doctors get charged with secondary violations not even related to the original one because they didn't properly focus on the main complaint, gave too much information or, worse, allowed an unqualified staff member to speak to investigators."

Is a state-board action of greater concern than a malpractice suit?

Some veterinarians seem more afraid of malpractice suits, "but I consider the state-board hearing to be of much greater concern, with potentially much stiffer costs and penalties," says Christopher J. Allen, DVM, JD, a DVM Magazine contributing author who provides legal and consulting services to veterinarians.

DVMs called to appear before state boards to respond to charges face "serious and substantial" costs, Allen says. Both he and Wyner agree that these costs fall into three principal categories:

• Career or professional costs,

• Economic (or licensure) costs and

• Emotional costs.

They offer the following theoretical and actual-case examples of each:

The career costs

An unfavorable verdict in a malpractice case may end in money damages, generally covered by insurance, Allen says. But an unfavorable verdict in a state-board hearing can carry much stiffer penalties. According to Allen, these include:

• License suspension, which the public likely will be able to discover.

• License revocation, which can result in the need to change careers entirely.

• An order to practice under supervision, which the public also will be able to discover "and which must be about as embarrassing as anything a professional person can imagine," Allen says.

• A period of probation, with the veterinarian possibly required to obtain more continuing education, write a paper or perform community service and/or pay a fine.

Secondary charges

"In more than half the cases I see, doctors are hit with secondary violations," Wyner says, "because they gave information they weren't even asked for — perhaps about which staff members handle which tasks or other secondary or superficial issues.

"One may not even be aware there's a problem until an investigator shows up, asks for records, asks you to fill out some forms and then says 'We'll let you know.' The doctor thinks everything's OK until he or she is hit with a second or third charge. Vets need legal help to know how to focus on the specific complaint, in its proper context, and not go beyond that scope."

In one case Wyner recalls, a DVM answered questions, provided records, including the names of all employees and allowed the employees to give statements. One gave wrong information that led to a secondary charge against the doctor, while the original charge involving a pet death was dismissed.

While original complaints usually are filed by clients, secondary charges often stem from employees who may have been well-meaning, or in a few cases disgruntled, Wyner says. "Others may come from whistle blowers."

The vast majority of complaints, Wyner says, involve adverse outcomes in pet care. But sometimes investigators will get enough information to tack on charges involving record-keeping procedures, risk disclosure, communication problems or handling of controlled substances. "The latter (controlled substances) is becoming a whole subset of issues that are getting more state-board attention," she says.

Public disclosure

Professional or career costs vary from state to state, Wyner says. "In some, if the complaint is minor and settled to everyone's satisfaction, the record may be expunged. In others, the record isn't easily accessible except under terms of a sunshine law. Still other states have full transparency — literally everything shows up on the record and license, warts and all.

"Also, in cases where vets hold multiple licenses, some states will notify another state of the action, while others are more passive about it. In the latter instance, unless someone specifically asked, it wouldn't be known in the nearby state until the doctor's license came up for renewal."

The economic costs

If the record is easily obtained or people make the effort to check a DVM's licensing background, an adverse state-board outcome can result in a significant loss of business, Wyner says.

Out of pocket

Because an administrative-law case is much like a civil trial, "a lot of time is required to gather evidence and statements, and that time is costly, Wyner explains.

Hearings may take place far from where a DVM practices, requiring much time off from work, Allen explains. "Hearings are held at a location convenient for the board, not for the subject of the investigation." Relief vets are expensive, too, Allen says. In addition, employees often are called to testify and usually expect to be paid by the employer for missed work and travel costs.

Insurance or lack of it

"Insurance rates are going up across the board because of the growing number of claims," Wyner says, "but I haven't heard of anyone having their insurance dropped because of a state-board action."

Veterinarians should know whether they have administrative-claims coverage, she says. "Some have it and don't use it because they don't understand it, or are not even aware they have it. They should check with their carrier to know how to use it if the occasion arises," Wyner says.

Some DVMs may have license-defense insurance (such as that offered by AVMA's Professional Liability Insurance Trust), but otherwise, unless covered by a special rider, malpractice and business insurance often don't cover either the cost of legal representation or the cost of a fine or penalty, Allen says. "Legal fees usually are charged by the hour, and several hundred dollars per hour at that."

The emotional costs

Most veterinarians take up the profession "because they have an abiding love of animals. They're gentle, kind, genuinely sweet people, and that's what makes my practice so rewarding," Wyner says.

"Someone like that often takes it very hard when their well-intentioned efforts are questioned," she says. "They begin to question their own skills and ability.

"I find that I need to do some therapy in about 90 percent of my cases, trying to encourage people who are angry, frustrated, demoralized, sad and frightened — people who never saw this coming and begin to wonder whom they can trust. They often begin to ask themselves, 'Do I even want to work in such an onerous administrative environment anymore? This is not what I signed up for.' "

The ongoing nightmare

State-board hearings often are protracted, lasting over several sessions and subject to many delays. "It is the nightmare that lasts and lasts," Allen says.

Linda H. Wyner

"It's (state board action) a very invasive process that can go on for six months, a year or sometimes longer," Wyner says.

Even if an accused DVM is exonerated, the process can takes an emotional toll on the doctor and staff.

"The morale of employees almost always is impacted negatively when the boss is called to answer for a professional impropriety," Allen says.

State boards are not subject to all the same rules that apply to criminal and civil trials, Allen explains. Testimony that wouldn't be allowed in court cases — perhaps involving speculation, conjecture, interpretation, hearsay, remarks from witnesses of questionable credibility — often finds its way into the hearing room. Appeals are difficult and expensive. "All of this can add up to depression on the part of the accused."

Christopher J. Allen

Wyner tells of a longtime private practitioner who became so demoralized he told her recently he's giving up the profession, even though the original complaint against him, after a lengthy process, eventually was dismissed.