DVM Newsmakers' Summit: Exploring the legal realities for the profession

Editor's Note: Understanding consumer behavior can help you as a clinician and business manager. DVM Newsmagazine asked five veterinary market leaders to join this year's DVM Newsmakers' Summit at CVC East in Baltimore. Following is the last of three excerpts from the panel discussion.

The panelists: Jim Flanigan, AVMA; Dr. John King, Minnesota state board; Howard Rubin, Brightheart Veterinary Centers; Dr. Richard Timmins, Association for Veterinary Family Practice; Dr. James F. Wilson, consultant and attorney; and DVM Newsmagazine Editor Daniel R. Verdon.

Verdon: Let's begin our discussion addressing the legal realities facing the veterinary profession.

James F. Wilson, DVM, JD

Wilson: I graduated from law school at UCLA in 1973, fully anticipating that the legal impact on veterinary medicine would be fairly significant within a short period of time. For 27 years, nothing happened.

Honestly, until the year 2000, there were virtually no significant changes in animal-law principles and those kinds of issues. We now have a very active public. We have lots of money being thrown at animal-law issues. There are now more than 70 law schools teaching animal law, and veterinary malpractice is among the many subjects they cover.

We have states adopting laws that are testing the market value of animals as the deciding factor on damages. Consider Maryland. The state passed a law allowing $7,500 worth of damages to recover economic losses, irrespective of the value of that pet. An 18-year-old cat with renal failure can be worth $7,500. Nevada just passed a law this past year allowing $5,000 in recovery for economic damages.

Jim Flanigan, AVMA

What I think is happening is that the legal process is lifting the lid on economic damages without expanding the opportunity for noneconomic damages, like for pain and suffering or emotional distress. I thought the courts were going to be more liberal. They have not been very liberal in opening those floodgates to damages against veterinarians.

It's fascinating to consider the amount of money available through animal-welfare groups like HSUS and ASPCA. The animal-welfare movement and its impact on veterinary medicine is one to watch.

Timmins: We've seen a lot of change in terms of people's awareness of welfare issues. Look back in the past couple of years and think about all of the events the media has covered in terms of animals and animal welfare. In California, the mistreatment of cattle resulted in one of the largest recalls in U.S. history. I think as people become more aware of these welfare issues, that's going to pay off in regard to interactions with veterinarians. I think they still believe veterinarians should be leaders in welfare issues. Unfortunately, I think many veterinarians are dragged into these issues unwillingly. What people are looking for is leadership.

Wilson: There's a certain segment of the veterinary school-class that thinks this is one of the highlights of the year. They're talking about the social and philosophical implications of animal welfare, which is important to them. Others think it's not nearly as important as all the medical, surgical and things we need to learn about. I do believe we have to get more cognizant of these issues in the veterinary practice environment. This is not just about veterinarians. I'm talking about the veterinary staff understanding the impact of animal welfare and especially animal cruelty in their communities.

We did a search on this just recently with states requiring veterinarians to report suspected animal-cruelty cases. This subject is creeping into cases more and more as the courts and society understand that animal cruelty and animal neglect is the forerunner of human cruelty and neglect.

I think the veterinary profession has to stand up and say, "We're in the animal-welfare arena with you," as opposed to saying, "We don't want to be involved in this animal-cruelty stuff. Maybe somebody will sue us. A client might get ticked off at us."

The truth is, you are seeing animal cruelty. You may not be recognizing it. What, if anything, are you doing as a staff to recognize that? Could it have impact in your community by dealing with this animal-welfare subject?

King: It is unfortunate that many veterinarians tend to back away from some of these challenges. Part of it is because they've had no training. Again, in veterinary schools, very rarely will you find specific classes or courses, particularly core courses, dealing with animal welfare. In general, we've deferred that to animal sciences. We expect students to take a course in animal welfare before they get into veterinary school. We are, however, seeing some changes. Most of you are aware, for example, of the increase in shelter medicine courses in all veterinary schools. That's been extremely valuable. As the students are learning how to define animal cruelty, for example, they're beginning to understand what they can do about it. If you recognize it, what should you do about it?

Wilson: There are good resources available to help you and your staff recognize animal cruelty. I would challenge you to have a staff meeting, just to talk about he hospital's role in the community when it comes to caring for these animals and clients. I think we all have to look at the broader picture for your staff.

Verdon: Let's turn the discussion to malpractice. Veterinarians have been very fortunate not to have to deal with malpractice in the same way as their human counterparts. So much is happening in this market in terms of access to advanced medical care. I'm hoping each of the panelists could offer his thoughts about the legal realities that might come with changing customer expectations.

Rubin: You raised an interesting question. In specialty medicine, a board-certified specialist has had extensive training in specialized cases. A general practitioner, who has less training and less experience with certain cases, has no real legal restrictions on his or her ability to take an interest in any case. It's going to be interesting to see how this evolves from a legal standpoint. Just because you have the license that says you're a practicing veterinarian and you have the ability to take on any case doesn't mean that you should. For those involved in specialty medicine, we see that happening often. The general practitioner might take it a little further than maybe he or she should have, and then turns it over to a specialist to try to work through the balance or just bail them out. It's an interesting paradox that we find ourselves in veterinary medicine.

Flanigan: Dr. Wilson mentioned that these consequences are fairly well capped because of the legal status of animals. AVMA did a survey of our membership last year in which we looked at and asked our members to identify what they thought were key issues facing the veterinary profession. We came up with 17 of these issues.

For the most part, the members tended to clump their answers in the same areas. Economics was a concern. The one exception was from our student members. Their top three concerns were the change in legal status of animals. What are the dynamics in the marketplace that potentially could change this? We know that for the most part, on a scale of trust, the public trusts veterinarians far more than they do attorneys. So on an airplane, Dr. Wilson, do you tell people you're a veterinarian or an attorney?

At least from the studies I've seen, there doesn't seem to be a groundswell of public sentiment wanting a change in the legal status of animals. That's partially because of the great respect that public has for veterinarians. One of the scenarios that we, as an association, have explored is that, if it came down to a discussion between veterinarians and attorneys, veterinarians would win. What would a scenario be where there would be a catalyzing of thought to want change in the legal status of animals?

A couple years ago we thought about a scenario where a nameless, faceless monolithic company did something bad and hurt or killed a lot of animals, and there was no recourse for the public. But there was a major outcry that the law needs to be changed, because this is criminal. Unfortunately, it happened with melamine and the pet-food recall.

What's interesting is that even after the fact, Gallup did a poll and asked pet owners, would you be willing to change the law to allow owners to pursue damages for pain and suffering? Only 33 percent said pet owners should. By comparison, 63 percent said they shouldn't. In spite of the fact that something like that happened, there is not this groundswell from the public in support of this. That doesn't mean there aren't those who are trying to change public policy. HSUS and others are very strongly pushing changing the status of owners to guardians. They've had some success at the municipal level. Vermont Supreme Court was dealing with legal status of animals in a case recently. In spite of the fact that the public may not necessarily want this, there are advocacy groups out there wanting to change it, and it's related to changing people's perceptions of animals and their concerns about animal-welfare issues.

Wilson: I think the legal consequences in the form of damages will be relatively slow to grow. On the other hand, the public-relations part of it is a potential time bomb. The press is now beginning to look at some of these concerns as well. Check around in your own locale to see who has had negative kinds of Internet commentary. You might be very surprised about what they are saying about your hospital.

We're doing a research project for my business management students at University of Pennsylvania right now. There are various Web site sources that will grade or have comments about veterinary practices. What you have out there are the disgruntled owners who see animal law not changing at the speed he or she would like. They're going to look to other sources — state boards, press or blogs on the Internet. I've seen some practices virtually destroyed. There was a case in Florida where they screwed up on a cat dental case. All the Internet and press coverage of that became far greater in damages and loss than they ever would have had in court.

King: We're seeing that as well with our state board in Minnesota, and I believe across the nation. Consumers are looking for a source that's going to corroborate their view. They go to these blogs and assessments to find all the negative stuff. They aren't looking for the other 93 percent of clients who love them. They cite an ongoing history of that veterinarian. Therefore, it helps them to justify and expect some kind of discipline, remuneration from the veterinarian. In Minnesota, and I believe this is also national, unhappy consumers that may have had an adverse outcome, but not because of incompetent care, will use a complaint filed with the board as leverage in their malpractice claim or in getting a bill refused.

The Minnesota board is sensitive to this. We don't deal with money issues. We only deal with standard of care. Most of the consumers who file a complaint as a way to get their money back are really disappointed. In most cases, there isn't sufficient proof that there was a breach in standard of care or competency; it's an adverse outcome or bad communication.

Timmins: Right now we can look at the data and say we're pretty well protected, but we really have to participate and be proactive. Dr. Wilson talked about the push to change pet owners to guardians. This could have a significant legal impact. We're seeing a lot of communities pass laws that do affect the health and well-being of pets.

In California, of course, the state debates a mandatory spay/neuter bill. All dogs and cats would have to be spayed or neutered by 6 months old, with some exceptions. There's another community that passed a law about declawing of cats. We have to be sensitive to that sort of environment.

We talked about Internet media, too. Recently, there was a television station in Southern California that conducted an "investigative report" looking at 20 different veterinary clinics. They had their own veterinarian examine a dog. They took it into these other veterinarians with the premise that veterinarians might be gouging the public. I'm not really sure of the long-term impact to our profession, but I think those sorts of things are potentially very damaging to the trust the public has in veterinarians.

Flanigan: There's a real sensitivity on the part of veterinarians to those kinds of news reports. One news report won't really hit the radar. The concern is whether that news report turns into another. The reference to that TV news report led the L.A. Times, prior to their annual issue about pets, to do a follow-up. AVMA spent a lot of time on the phone with the reporters trying to talk them through the point that just because spending is up doesn't mean fees are up. Fees probably are up, but that's beside the point. Consumers are demanding this kind of care, which is what we've always said.

Veterinarians and the animal-health industry are somewhat complicit in this change or potential change. Consider the use of the term pet parents. That appeals to a high-end client who is particularly bonded with their pet. The reality is, that will attract those clients. But overall that may diminish the veterinary profession's position that the legal status of animals shouldn't be changed.

Wilson: It's wonderful in illustrating your empathy and the bond. But I'll tell you, in the eyes of the client, these little guys are not going to be considered property anymore. That's where my struggle is. An animal can't be like a chair. There's got to be something between inanimate property and humans.

But the movement will grow in the public. It's been fostered by veterinarians who are saying, "Wow, is this your family? Where does your pet sleep?" From a legal perspective, how do we control that without diminishing their importance in our lives and in society and still watch out for the legal consequences?

Timmins: I don't know if control is the right word, because, after all, the data that came out with AVMA's sourcebook showed that more than 50 percent of pet owners consider their pets members of the family.

When we started the Association for Veterinarian Family Practice a couple years ago, there were a lot of concerns expressed by AVMA about the concept that we talk about pet members of the family. Concern that having an association like this was going to possibly have negative effects, as Dr. Wilson just suggested. These are the client's terms. We have to acknowledge them.

The way we approach it with the AVFP is we talk about pet members of the family, which is different from a child. It is something that says that you recognize the important role that pets have in a family.

You also have to recognize that there are limits.