Shifting liability: The new American pastime

I enjoy a lot of legal dramas on television these days. The portrayal of lawyers' day-to-day life is unrealistic, but the law can be extremely accurate, particularly about the management of liability and potential liability.

Here's an example from a recent episode of CBS' The Good Wife. A high-school athlete dies of a prescription overdose of narcotics. Star attorney Alicia Floric is assigned by her firm to defend the hospital and its doctor, who has been accused of prescribing an excessive dose of the medication.

As the story unfolds, imagine how it would play out in your practice.

The fatal prescription had been found in the dead boy's gym bag. Floric is organizing her case when everyone learns the pill dosage was way too high for a teenager. Immediately, hospital attorneys shift the liability from the hospital to the doctor.

But wait! Then they find the doctor wrote the prescription during a house call to the dead boy's home. Boom! The hospital's attorney cut off the doctor's defense to try to protect the hospital from liability. This is exactly how it would go down in real life.

Associate veterinarians: Is it unfathomable to imagine this happening in your practice, especially if you don't have the world's best relationship with the practice owner, partners or company that own your shop? Maybe we all need to watch a little TV to get an objective outlook on our own circumstances.

Back on The Good Wife, the plot thickened up like a good Thanksgiving gravy. Floric finds out the overdose may have been a pharmacy error. The doctor is elated! His new lawyer can dump some of the liability at the doorstep of the drug store!

Oh, no! This put Floric in hot water. Nobody told her the hospital was part owner of the pharmacy that possibly screwed up the prescription. Suddenly, the hospital's liability is back in play! The only ones making out great were the plaintiff's lawyers representing the dead high-schooler's estate. They had a foot-high stack of defendants all pointing fingers at each other.

TV mirrors real life

So why is this drama pertinent to our profession? Because dodging liability is the latest American pastime, and the trend follows right into the animal hospital setting.

Consider a recent example from my client files. Dr. A treated a dog whose owner used an OTC spot-on flea preventive. A large, hairless, inflamed patch appeared and turned necrotic where the preventive was applied. Dr. A treated the condition but warned the owner that she would need a specialist in skin and surgery if the lesion grew larger.

Long story short, specialists came in and undertook grafting and other expensive therapies resulting in a bill of more than $5,000.

When contacted, the manufacturer representative insisted that the product didn't have such side effects, that the owner didn't follow the directions, and that the lesion was due to an undiagnosed pre-existing autoimmune or neoplastic condition. Okaaaaaay.

Constructing a problem

I myself faced a liability-dodging dilemma. Some time ago, I was having a practice building constructed, with flash-coved floors (flash coving brings the edges of the linoleum a few inches up the wall for urine control). After the flooring was installed but before the construction was complete, all the linoleum edges were already pulling away from the wall. Also, bubbles were developing under the flooring where it lay on the poured concrete slab.

I wanted it fixed! I put the architect in charge of kicking the requisite butts. Who would ever have guessed just how many people weren't responsible?

The general contractor assured us it was a problem with the glue or the sheet vinyl. The floor company told my architect that the general contractor didn't properly install the sheet goods. The glue people told us the concrete must have been bad.

I threatened everybody with a lawsuit, but they blew me off, saying I had no proof it was their fault. The only way I was able to get any resolution was to hire an adhesives expert from out of town and inform the potential wrongdoers that the firm had been retained to provide expert testimony in an eventual lawsuit.

In our own backyard

The legal dodgeball that hits all of us most frequently in clinical practice is played by some of our clients. In the middle of emergency triage, the owner of a dog involved in a fight explains that you should send the bill to the owner of the other canine combatant. A client waits until the end of an office visit to tell you the cat you just worked on belongs to out-of-town relatives, and you should send the bill to them And who among us hasn't worked with a long-standing client who brings in a pet and at the end of treatment explains that "Mrs. Client and I aren't married anymore, and this is really her dog. So, I'm just bringing him in but won't be paying today." If only these dramas were on TV and not in real practice.

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.