When should I call my lawyer?

My office routinely receives calls from frustrated or perplexed veterinarians who are wonder whether a specific matter or problem that they are involved with might require an attorney.

Naturally, there is always the inclination on the part of each of us to avoid unnecessary expense and the wasting of time by approaching problems on a do-it-yourself basis. Alternatively, some of us are so intimidated by a certain type of problem that we call in professionals at the first sign of trouble. (Which is why I instantly hand over the television remote to my 12-year-old son, James, when I can't get the channel to change).

No one can deny that it is a challenge to identify when the help of a lawyer is actually required and when the do-it-yourself technique will suffice for a specific contract, will, release form or IRS contact letter. It is especially tough to know whether to call in help if a client states or implies that she intends to pursue legal action against you or your clinic.

In this column, I will provide some general guidance as to what to do and whom to call in the event that a DVM perceives a threatened legal claim involving professional malpractice. Later this year, I intend to consider the same question as it pertains to more routine legal matters, such as practice purchases, disclaimer forms and state and federal tax challenges.

Malpractice suits and lawsuit threats:

Malpractice lawsuits are different from malpractice lawsuit threats. The two should be considered separately.

With the threat of a lawsuit that appears to be baseless, I would suggest that the facts of the case be evaluated as objectively as possible by the veterinarian(s) involved in order to detect evidence of any possible wrongdoing, even in the event a client should state or verbally imply that he or she intends to file a malpractice suit against a practitioner or clinic.

If this objective assessment reveals virtually no basis for suit (no injury to person, pet or property), or that the threat seems primarily based on mere disagreement with price, an inconvenience, etc.,) it might not be necessary to spend much more time on the matter. It is wise, though, to review the matter with your staff to see if anyone remembers any sort of inappropriate behavior or any failure to carry out an ordered treatment. If such potential evidence emerges, it is a good idea to have the information documented in a writing by the staff member who recalled it for keeping in-clinic records, not in the medical record itself.

Remember, the medical record generally speaks of the time recordings are entered, not of subsequent thoughts that could have, should have or would have been entered at some prior time had an issue been raised.

If no one recalls anything out of the ordinary, it is probably safe to wait and see whether a summons is actually served by the aggrieved client.

Note: An imaginary or baseless claim that malpractice was committed should not inhibit the pursuit of payment for services. The debt and the claim are separate matters. If nothing was done wrong, a veterinarian should not be intimidated into "letting the client go" on the fee.

Claims involving actual injury or loss

In the event that a transaction has occurred in which a person, pet or property actually suffered some injury (regardless of whether the DVM believes he or she was even partly a cause of that injury), the threat of a claim should be taken somewhat more seriously. A call to the insurance carriers or agent should be made (preferably the carriers) and the call should be followed up with a letter.

Copies of any threatening or other types of letters or written communications from the aggrieved party should be submitted to the malpractice carrier, the general business liability carrier or both. (Keep in mind that some client transactions or claims can involve more than a single type of potential claim, for example, malpractice by the DVM upon the pet and slander of the pet owner by a doctor or staff member in the heat of the disagreement.

A special note to associate DVMs: If any client transaction unfolds in such a way that a dispute seems likely to arise in the future, remember two important points:

1) The medical record is not the only place where documentation can be made.

2) The matter may eventually involve others than just you.

Here are some tips for younger doctors faced with an unhappy client or an unsatisfactory therapeutic outcome:

• Tell the boss. Always keep in mind that errors and omissions perpetrated by an employed veterinarian may be answerable not only by the employed DVM but also by the employing doctor(s) as well as several others. The employer DVM, his business, the building owner and the licensed technicians involved in the treatment all could potentially become involved in a lawsuit and all need to get a "heads-up" if trouble may be coming. Certainly most of these parties are not likely to need immediate legal advice, but awareness of potential problems is extremely useful.

• Private notes are useful. Private notes about a potentially problematic office visit/surgery/client communication event can and should be made by the DVM. The private notes should be made on papers personal to the DVM and not in the medical record. It is often perfectly acceptable, even desirable, for an associate veterinarian to keep some notes personally and not to share them with employer or staff. In private notes, minor details relevant to the event may be made safely and may be used later to assist the DVM in his or her testimony.

Such notes allow the veterinarian's full story to be recorded without potential liability for libel or slander. For example, it would be very appropriate to mention in private notes that "Mrs. Smith appeared to be so much under the influence of drugs and/or alcohol that she could barely stand, let alone drive herself home, which she did after storming out of our office ..."

This comment probably does not belong in the medical record, which almost certainly will be available for viewing by others. However, the allegedly clouded perception of the owner is relevant to any later accusation surrounding the transaction and should be memorialized in a document not intended for viewing by others (absent a subpoena).

If the doctors and the staff members follow these suggestions, the insurance company may be satisfied, upon notification, to wait for further action by the unhappy client. It would not be surprising if the company(s) simply assign a case number, perhaps have an adjuster call for a brief description of the problem, and then recommend that no attorney be immediately assigned.

Finally, if you, your associate or your practice is actually served with a summons, the malpractice and/or business insurance carrier must be advised verbally and in writing at once. Shortly, an attorney should contact the insured party to review the case. Of course, in the unimaginable circumstance where the DVM has no malpractice coverage, a private lawyer should be contacted immediately.

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