Preventive Legal Health: Legal Risks of Bad Veterinary Recordkeeping

The veterinary industry is ingrained with the concept of preventive care as the best method to provide quality healthcare for patients. The approach of preventive care, however, applies to the entire veterinary practice and not just patient health—a term I refer to as “preventive legal health.” Preventive legal health is using legal best practices to keep your business free from illness or injury. Much like the vet who only sees a patient when sick, my firm is often called to the veterinary practice as a necessary evil to deal with a problem that could have been resolved with routine preventive measures. At the forefront of best practices for preventive legal health is proper recordkeeping.

To veterinarians, “records” are most often associated with patient charts, but can include any record utilized in the business, such as human resource documents, policies and procedures, client and patient notes, invoices and statements, inventory, controlled substance logs, surgery and anesthesia logs, radiographs, etc. To attorneys, business records inevitably become synonymous with “evidence” used to prove something did or did not transpire. The lack of evidence leaves a situation open to interpretation as to what truly transpired—for this reason, attorneys are ingrained with the principle, “If it is not in the record, it did not happen.” In veterinary practice, proper recordkeeping is a must and should follow the guidelines listed below. (“Real-world” examples have been included after each guideline to aid in proper understanding.)

RECORDS MUST BE COMPLETE, ACCURATE, AND MEANINGFUL

Records should be written in a manner such that a relief veterinarian could open the patient chart and be brought up to speed. Notes made in cryptic shorthand should be avoided. If shorthand is routinely used in your practice, a written abbreviation chart, which includes both well-known and lesser-known abbreviations, needs to be a part of your office policies and procedures. In addition, complete and meaningful recordkeeping involves using consents and waivers (see below) to ensure that proper informed consent and recommendations have been given and recorded.

Example: Doctor A works in a fast-paced practice. To keep up with appointment times and scheduling, Doctor A uses the following objective shorthand for record-keeping following an appointment: PE: LE, M, BAR, BCS 6/9, sore abdomen, DECL HWT RADS. Although most veterinarians are knowledgeable about many abbreviations (ie, Physical Exam [PE], Bright/Alert/Responsive [BAR], Body Condition Score [BSC]), they might not have picked up on “Limited Exam” (LE) or “muzzled” (M), which could result in physical injuries to the next doctor if the animal was muzzled because it posed a danger to the first doctor. Best practices would be to use your database software to create alerts for dangerous pets and to incorporate modifiable, routine notes so that they are meaningful to anyone reading the chart. Records must generally be “adequate and sufficient” pursuant to most

veterinarian codes of conduct.¹

Additionally, although recording a doctor’s notes regarding declined recommendations, such as heartworm tests or radiographs, by using “DECL HWT RADS” is better than nothing; best practices dictate that the client sign an “Against Medical Advice” form or “Waiver” to record that they have provided informed consent of not following medical recommendations. Remember: If it is not in the record, it did not happen.

RECORDS MUST BE TIMELY

For records to be admissible as evidence, they must have been made “at or near the time” of the event they describe.² The law starts with the presumption that records made while the information is the most fresh are also more truthful and accurate.

Example: Doctor A does not have time to complete patient charts until the end of the week. Doctor B completes patient charts at the end of the day. Doctor C completes patient charts throughout the day, following each examination or procedure. If Doctors A, B, and C all made the exact same record, the law would generally favor Doctor C’s records as the most credible, whereas Doctor A’s records may not even be admissible for the doctor to say what did or did not transpire. As a result, Doctor A’s records of treatment will be open to interpretation to what the client remembers.

KEEP REGULAR AND UNIFORM BUSINESS ACTIVITY RECORDS

For records to be admissible as evidence before a court and most other tribunals (such as a board of veterinary examiners), they must be regularly and uniformly kept in the ordinary course of business.²

Example: Hospital A is extremely busy with routine spays and neuters. To save time and expense, the hospital does not have an assistant or tech complete anesthesia monitoring records during surgery. Instead, the hospital policy is to record only adverse events, which are extremely uncommon. The result: not only are the records irregularly kept and most likely inadmissible to prove something did or did not happen, if the records were subpoenaed, they would show that all spays and neuters resulted in adverse events because those are the only records that exist.

RECORDS MUST BE AUDITED AND UNIFORMLY ENFORCED

Policies and procedures for recordkeeping must also be routinely and uniformly enforced.

Example: A receptionist was terminated for failing to obtain a “Consent for Surgery” form and made a claim for unemployment benefits. The hospital produced a signed training manual as well as a signed policies and procedures manual illustrating surgery consents were to be obtained for any procedure requiring sedation/anesthesia. The hospital also produced the receptionist’s previous history of complying with the policy. The result was a denial in unemployment benefits because the receptionist failed to follow a clear and uniformly enforced policy or procedure.

RECORDS MUST BE WRITTEN AND SIGNED

A verbal record, contract, or authorization is open to various interpretations. Veterinarians need to use proper waivers and consents and obtain a client’s signature. Memories may fade over time, but written and signed documents are the best evidence of mutual understanding.

Example: A receptionist failed to obtain a dental consent form when the patient was dropped off, and the client verbally consented to a dental procedure, but declined dental radiographs. During the procedure, the patient’s jaw is broken due to reasons that may have been observed on radiographs. The client will most likely receive remuneration if (s)he later claims lack of informed consent or that (s)he had requested radiographs, since the lack of a written record leaves the recollections after the occurrence open to interpretation.

Listed below are the most typical hospital forms we recommend in all practices:

• Against Medical Advice
• Consent for Surgery and Anesthesia
• Consent for Treatment (Drop Off)
• Dental Consent
• Euthanasia and After Care
• Medical Records Release Authorization
• Restraint by Owner
• Waivers for Declined Services
• New Client Form
• Estimates
• Promissory Note
• Employment Agreement
• Relinquish Pet Authorization
• Volunteer/Internship Agreement
• Authorization to Use Patient Photo graphs and Videos for Advertising Purposes

Preventive legal health encapsulates an understanding on the veterinarian’s part that records are not solely for medical purposes. Records are evidence that must comply with certain legal principles.

Anthony Mahan owns and manages Mahan Law, a firm with a dedicated practice division representing veterinary hospitals through VeterinaryLawyer.com. Mr. Mahan is also co-owner of Riverview Animal Hospital in Bellevue, Kentucky. Apart from being an experienced business and litigation attorney, Mr. Mahan is also an adjunct professor of entrepreneurial and business Law at Northern Kentucky University. Mr. Mahan holds a bachelor’s degree in finance from the University of Kentucky, an MBA from Northern Kentucky University, and a law degree from the University of Cincinnati.

REFERENCES

• The Kentucky Board of Veterinary Examiners. Kentucky Administrative Regulations: code of ethical conduct 201 KAR 16:010, Section 10. Frankfort, Kentucky: Board of Veterinary Examiners; 2012:15-18.
• The Committee on the Judiciary House of Representatives. Federal Rules of Evidence: Rule 803: exceptions to the rule against hearsay— regardless of whether the declarant is available as a witness. Washington, DC: US Government; 2014: 18-21.