Protecting yourself from 'pet battery' lawsuits

One of the most surprising things I learned in law school was the legal definition of "battery." Police and news programs often mention the terms "assault and battery." When you hear that, you might form a mental picture of some punk beating up an upstanding citizen who said or did something the loser didn't like.

In reality, battery can be a much more subtle act. It can mean simply committing a physical act to or upon someone without their express consent. When a professional boxer bashes Mike Tyson in the ring, it isn't battery because consent is present. On the other hand, if a plastic surgeon removes a mole from your nose while you are under anesthesia for an eyelid job, he has committed actionable battery unless express consent for removing the mole was obtained prior to sedation.

A similar principle applies to the veterinarian who performs an act upon an animal without the permission of its owner. That's potentially actionable (lawsuit-generating), and the potential exists for a malpractice accusation.

Realistically, of course, we do this all the time. I give away complimentary nail trims and shave infected crusty patches for owners who brought in their pets for something else entirely. If you see a dangling deciduous tooth during a neuter, don't you pop it out without asking Mom and Dad?

But what about procedures with more permanent results? You wouldn't neuter an animal without written authorization. An amputation without the advance approval of the person who brought you the pet would be out of the question. Without that signed form, forget about undertaking a euthanasia.

These questions aren't even a challenge.

Consider, though, where you would stand if you committed a "pet battery" (performed an irreversible procedure) on an animal that belonged to a party other than the one who brought the animal in for treatment?

If you have been in practice very long, you know how this issue would most likely arise: Negligent owner leaves dog outside, and it becomes sick and fly-bitten. Samaritan neighbor scarfs the pet up during the day, gets it treated and returns the animal before anybody knows it is missing. No harm done, probably even if something happened to the animal at your practice, because the Samaritan signed a form saying he or she was the owner or the owner's authorized agent.

Now, though, consider a potentially more problematic situation: Jerry and John always come in together with Fluffy. Lately, though, Fluffy has been declining in health and her condition is serious enough that euthanasia would not be out of the question. One afternoon, Jerry comes in and signs for Fluffy's euthanasia, which you perform.

But when John gets home from work and finds out what happened, he is outraged. He calls and tells you he plans to sue you and Jerry and contact the state board. It seems that the true owner, John, would never have considered euthanasia, and Fluffy has been John's property ever since birth and well before Jerry and John got married.

Now the marriage is on the rocks, and you are caught between a rock and a hard place.

The general law of personal property probably would have been dispositive of this potential issue back when animals were considered personal property and nothing more. Now, however, in a world where domestic animals are being left (and are receiving) millions in testamentary bequests and are generating lawsuits and substantial pain-and-suffering verdicts, we veterinarians don't dare be so cavalier where treatment authorization is concerned.

Consider this example from one of my own veterinary practices:

We had been treating a certain feline for almost 20 years. Originally it was brought in for kitten shots by the female owner (W) and then from time to time as an adult cat by her new husband (H).

When the cat became ancient, H brought kitty in for euthanasia. It seemed odd to me that he arrived in the middle of the day and without his wife. I examined the cat, agreed that euthanasia would be a realistic alternative and H signed the papers. After he left, I thought harder about the situation and told my staff to put the euthanasia on hold; I wanted to wait on this one for at least a day.

Sure enough, the inevitable spousal battle ensued when W got home from work.

Fortunately, we had not yet made the irrevocable injection; so the only one W could be furious with was her husband. Apparently, the euthanasia was arranged on the sly because H was tired of the odor and the appearance of the cat. This was why the exam/euthanasia drop-off was done while W was at work.

Most men know it is usually easier to ask forgiveness than to ask permission. This situation carried that principle too far. Luckily, in this instance the vet wasn't caught in the trap.

So what steps should be taken to avoid perpetrating a "battery" in private veterinary practice?

There's much more to it than just being familiar with your clients and delaying procedures when you are suspicious.

I recommend that hospital admission and emergency forms be drafted carefully and contain a few changes from those commonly used by veterinary hospitals around the country.

Of course, there are no words or phrases that will protect the practice or practitioner with absolute certainty. However, in litigation, evidence of a serious effort to avoid errors and prevent fraud can be very persuasive. Here are some steps I suggest:

1. BOLDFACE PRINT. The operative sentences in an admission form are those which state that the signer has the authority to authorize the animal's surgery/diagnostics/euthanasia. These sentences should be clearly stated, easy to understand and should be printed in boldface letters. Does that seem crazy? Check the New York statutory law on will and deed forms. Specific print size of certain language is mandated because the Legislature is looking to protect innocent parties from signing important papers under undue influence or deception.

2. HOLD-HARMLESS LANGUAGE. The party who signs to authorize surgical or other invasive services needs to "own" their decision. This is done by including a brief phrase stating that the signer agrees to take financial responsibility (to "hold harmless" the veterinarian) in the event the doctor suffers damages due to treatment that was fraudulently or improperly authorized by the signer. In other words, it places the risk of a successful lawsuit against the vet in the wallet of the signer.

3. FIRST-VISIT AGENCY DECLARATION. This simple step is really useful. When a new patient is presented, give the client a form to sign that states who (in addition to himself) is authorized to present the animal for treatment in the future.

This has a double benefit, in that the client can't try to avoid paying by claiming, for example, that the teen-aged son didn't have his OK to get the animal treated. If the son is on the form, he had better pay up.

4. COMPLIMENTARY COPY FOR THE SIGNER. Let the individual who is leaving his pet for you to treat enjoy the fruits of your laudable efforts to clear up the questions of ownership and agency.

Make sure you send home a photocopy of the signed admission form. Doing so is a reminder to the potential wrongdoer of what he has signed and what he has done. Also, it is a nice little hint that, because he dropped off a pet for work, he should pay for the work as agreed.

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.