Letter of the Law: Once bitten, twice shy – the best way for your veterinary clinic to handle pet restraint

Hundreds of years ago, before I had back trouble and difficulty maintaining my weight, I was a relief veterinarian, traveling far and wide to remote venues in New York. I provided a much-needed respite to practice owners, some of whom hadn't had a vacation in years. I didn't think all that much about the gigs I used to perform in that capacity until I was no longer doing it and had re-joined the ranks of practice owners. It was then I realized what a broadening and educational experience those few relief years had turned out to be. During that time, I learned a ton about various ways to approach medical and surgical issues, but I learned even more about my legal specialty.

When you have the opportunity to visit and work at different clinics, you also have the chance to see how various practitioners handle the same day-to-day issues and problems you've routinely dealt with over years of practice ownership. But because you're working in a role that is temporary, you can see the approaches other veterinarians take (both good and bad) from a much more objective point of view. You don't need to worry about making the rules, so you can see, in an unemotional way, just what impact the owner's solutions have actually had. A relief veterinarian can see the problems and solutions in sort of a "watching from above" way. And if you also happen to be an attorney, you can look at the liability aspect of practice policies with an unusually critical and analytical eye.

A malpractice mess

I was reminded once again of the benefit of my relief days when I came across a recent issue of the quarterly flier published by the AVMA Professional Liability Trust titled, (appropriately, if not creatively), "Professional Liability." For those of you who receive this publication but toss it in the recycle bin, this little magazine is a compilation of brief summaries describing malpractice claims recently brought against veterinarians throughout the U.S., including settled and litigated matters. In "Professional Liability," I spotted a discussion about a malpractice claim involving a cat that was being weighed by an exam room attendant and resulted in a bitten client and a lawsuit.

Now, at my practices, we have full-time attendants who restrain pets at all times while the doctor is examining and treating them during appointments. Though I would like to say this protocol is part of my ongoing effort to exercise the best possible practice standards, that would be, well, inaccurate—OK, it would be a lie. The reality is that having somebody in the exam room to hold the pet during an exam saves me a bunch of time, of which I never seem to have enough. Of course, many small animal hospitals find that having clients restrain their own pets works more effectively.

What caught my attention in the vignette from the AVMA booklet was the fact that a complicated and expensive malpractice claim resulted from an exam room situation where an office call attendant was present. It just struck me that while I have worked as a relief doctor in dozens of hospitals that don't even use animal restrainers during appointments and have never had a claim, "Dr. B," as he is called in the article, was successfully sued for a cat bite event in an instance where a licensed technician was helping during the appointment. What the heck are we supposed to learn from that?

I gleaned some answers to this question from a mental Venn diagram, where I can see a shaded area at the intersection of the "relief vet clinical experience" circle and the circle filled with 30 years' experience as a lawyer. And, I also have a subtle message for all those associates who would never work at a practice that doesn't use office call technicians, and all those practice owners who won't interview a doctor who insists on having one: in the scenario described above, the office call technician was weighing a cat and the client reached over to take the patient as it was stepping off the baby scale. The feline rascal lost its footing, and proceeded to claw and bite the client. The upshot: $23,000 in medical bills and alleged lost wages, a nasty malpractice claim, a lawsuit by the client's health insurance company against Dr. B's liability insurance company—basically, a total mess.

Prevention breeds protection

So, should we have a client restrain his or her pet? Never allow the client to restrain the pet? It seems like either way, you can lose. Here are the best legal guidelines to use in the daily effort to prevent a lawsuit while simultaneously protecting your staff and your wallet.

1. Common sense.

There is no absolute way to prevent human injury in the veterinary workplace in every instance, but there are ways you can reduce the likelihood of insurance and malpractice claims. For example, you should make sure all office call assistants receive adequate and thorough training before they undertake the role of appointment helper. I'd rather have a sensible and experienced pet owner help me during an office call than some lumbering new hire who has never learned anything about animal restraint or animal behavior during stress.

2. Instructions and the opt-out.

If your practice routinely relies on clients to restrain their pets during an office visit, it's worth taking the time to demonstrate, at least briefly, the proper way to hold on to the pet during the exam. Also, offering to call in a restraint person and having that offer declined puts the veterinarian in a better legal position in the event of a bite than never having offered at all.

3. Client warnings.

If your practice does use an office call attendant or office call technician, it's wise to specifically tell the client that the helper will handle the restraint and that the client is not to be involved in that activity. Naturally, there are always those clients who insist on putting their hands on and around the pet's face during your palpations and probing, so it's wise to train your office call technician on the best way to "gently but firmly" advise these clients to stop doing so. Many clients will assure you that their pet would never bite them, but the admonishment has important legal significance, making it worth the effort.

4. One-bite-free rule.

In a number of jurisdictions, there is a legal doctrine that says pet owners are not responsible when their dog bites someone if it's the first occurence. The theory is that the event could not reasonably be foreseen because it never happened before. One can extrapolate from that doctrine that a prior bite or attempt to bite does imply legal foreseeability. That means that it's probably best never to permit a dog or cat who has ever bitten or tried to bite you or anyone else to be restrained by its owner.

5. Generous insurance limits.

Very simply, juries love to give away insurance companies' money and in many instances, juries don't know how much insurance coverage a physician or veterinarian has when they are deciding on damages in a malpractice case. Therefore, it's possible that an injured hand or face could result in a $150,000 verdict, when a doctor's coverage is limited to $100,000. Guess where the excess verdict amount will come from? In the final analysis, realistic insurance coverage may be more important than the decision whether to use an office call technician or take your chances with client restraint.

Dr. Allen is president of the Associates in Veterinary Law P.C., which provides legal and consulting services to veterinarians. Call (607) 754-1510 or visit info@veterinarylaw.com.