The patient care disconnect: Assessing your liability when communication fails

Legal liability is a potential problem for every business person, including health professionals such as veterinarians.

It is easy to imagine why more complex business organizations have more legal risks. A greater number of manufacturing facilities creates more opportunities for injury, and more customers result in more complaints and potential lawsuits.

Likewise, in a large veterinary practice, the size factor itself — increased personnel and the splintering of management responsibilities — can create legal risks that smaller practices usually don't face.

Briefly stated, legal risk increases as it becomes ever more difficult for the left hand to know what the right is doing.

Reduced continuity of care

To illustrate, consider this brief analogy involving the human-health field:

I recently spent a few days in the hospital, where I became particularly aware of how confusion and lack of communication can delay, complicate and even derail a treatment protocol.

Many modern hospitals have created a new physician job title, the "hospitalist." (The term is so new that the spell-check on my computer doesn't recognize it.) That was done to accommodate the fact that, today, primary-care physicians frequently don't come to the hospital to see all the patients they have admitted. Instead, these patients are placed in the care of a group of physicians who do nothing except manage cases admitted by others.

The larger the facility, the bigger the group of hospitalists. In my recent experience, these doctors often have so little familiarity with the patients that they visit some without having seen even their medical records.

Apparently I needed fluid therapy and blood work due to dehydration. The emergency-room doctor accepted me from my internist, whom I had visited in the early afternoon.

The ER ordered my admission for LRS and intravenous antibiotics. That was around 4 p.m.

At midnight, I had been in my hospital bed for eight hours, and there was no IV in sight. Also no food, water or even ice chips.

Finally, I demanded to know why and was told that no hospitalist had written an order for any of those things and therefore I couldn't have them until there was an order.

When I finally insisted that I wanted treatment or I wanted to go home, a nurse agreed to pester the hospitalist staff to come see me.

Finally, a doctor I had never met wandered in and asked how I came to be admitted to his floor.

Once I brought that hospitalist up to speed on my medical condition, I got my juice and my IV. I never saw that hospitalist again, but I did see many others who dropped in once, never to return.

Large veterinary practices

Now, I guarantee that if this degree of disconnect can happen in one of the finest hospitals in the country, it can happen in private veterinary practice.

The truth is that similar problems are not uncommon in the large veterinary-practice setting.

In a one- or two-DVM practice there is constant personal communication and discussion about admitted patients (of which there tend to be fewer anyway), making it fairly hard for a patient's medical or observation needs to fall through the cracks. Each critter generally is known by name, at least by the support staff, and there tends to be a strong personal relationship between each patient and the doctor and technical staff who have been working on it since admission.

However, when there are multiple doctors working on the same animal over several days with multiple shifts of support personnel, it is not difficult for patients to get inadvertently overlooked or undertreated.

I have worked in large hospitals where there were multiple cases presenting with the same primary rule-out diagnosis. Whether it's parvo or lepto, it is not all that difficult to confuse which case is getting better and ready to be treated more conservatively and which is practically ready to expire. The order of treatment can be affected so that the sick patient can go to critical before the client has been notified of the unfolding crisis.

That can lead to lawsuits even when nothing could have saved the patient.

I can tell you from years of experience that just as many malpractice lawsuits arise out of poor observation practices and lack of client notification as from alleged negligence.

The closer we come to being "hospitalists," the greater the risk of inadequate case oversight, poor client contact and lawsuits.

Lack of lay-personnel training

In a small practice, it isn't hard to tell when a new hire just isn't getting it. Because doctors and technicians all work with her every day, it is common chatter as to what she can do, what she can't be trusted to do and which responsibilities can be entrusted to her.

But large hospitals can lose track of staff and neglect to keep close tabs on their progress or lack of it. For example, the experienced personnel may get extraordinarily busy and simply forget that responsibility for in-kennel observation was left to someone inexperienced. These inadequately trained or minimally experienced workers, while meaning well, simply may not recognize that a patient is deteriorating.

Problems when oversight lapses

In an intimate work environment, it is immediately obvious when an employee is behaving badly. Everybody knows in about 10 seconds if one of the kennel people is hitting on one of the technicians or one of the receptionists is using practice computers to e-mail honeymoon bedroom photos to friends around town.

Not so in the extra-large, multi-DVM animal hospital.

As the practice grows, it becomes ever more challenging to control improper and inappropriate behavior by staff members, including veterinarians.

While it may be hard to believe, practices can and do incur legal liability for "loose cannon" employees who commit outright illegal acts in the workplace.

Here's a brief laundry list of activities that can get out of hand when personnel management becomes more splintered:

Sexual harassment

It happens even in smaller hospitals, but at least in them the boss is almost certain to see it or get wind of it. If he fails to act, he deserves the labor-law claim that's likely to ensue.

But in a mega-hospital, a lot of nasty talk can pass between staff members before any hint of it gets to management. In that instance, even a good practice owner who does not tolerate this sort of talk may get in trouble simply for not knowing that a pattern of harassment was going on among workers.

Racial, religious and gender harrassment

Federal and state laws clearly prohibit this type of harassment in the workplace. Cases before the federal government can take a long time to be heard and may become quite complex, but many states have made themselves very accessible to harassed workers.

In a number of states, labor laws and labor agencies are extremely worker friendly and make it quite cost-effective and logistically easy to bring cases against employers over harassment or intolerance based on "suspect categories" such as ethnicity or color.

Misuse of practice copiers

You wouldn't believe the things employees do in an unmonitored workplace. They photocopy pornography or print obscene material from the Internet using office equipment. Some have created driver's licenses with altered birthdates so they can sneak into bars. If you think that's limited to the rare "rogue" worker, you are wrong. These sorts of abuses happen frequently.

In some states more than others, the employer can be called to answer for why electronic modalities were not more carefully monitored.

Misuse of computers, telephones

Theories of imputed and vicarious liability place practice owners at risk when unsupervised staff members take advantage of e-mail, instant messaging and office telephone and fax equipment to harrass others.

Employees have threatened their ex-girlfiends and ex-boyfriends via the office telephone. Some transmit lewd photos of ex-spouses using company Internet access and equipment.

The take-home point:

Large, diversified veterinary practices need to know how their electronics are being used and keep track of employees who might use them for non-business purposes.

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 e-mail info@veterinarylaw.com