Zoonosis: What are the legal risks?

In each person's professional career, there are a few incidents or events that stand out such that they are never really forgotten. If that professional is wise, he or she will take home a lesson from such an experience and make an effort to use the knowledge gained in the future.

For me, one such event was an assignment that was given to me as a young lawyer working in New York City. It was the early 1980s and as some older readers might remember, at that time a terribly tragic accident occurred on the Brooklyn Bridge in which a support cable came loose and struck an innocent pedestrian. As one might imagine, the lawsuits were flying in every direction. I was handling the defense of one of our firm's clients.

When I appeared at the first pre-trial motion, the scene inside the judge's chambers looked like the will-call window at Yankee Stadium on free bobble-head day. There wasn't enough space for all the attorneys to even fit in the room to take part in the hearing. Why? Simply because so many parties were being sued for so many accusations of negligence that many of the defendants' insurers had to send counsel to protect them against ridiculously frivolous claims.

For my own part, I was representing the interests of a particularly vile, culpable defendant. Our client manufactured the little bumpy nubs that help drivers stay in their lane on the Brooklyn Bridge. Plaintiff's attorney must have figures that somehow, somewhere, my client must have done something wrong that could conceivably result in wringing a few bucks out of him.

That was the day that I learned that in our tort system, often the incentive is to sue everyone you can think of for anything you can think of.

This anecdote is worth remembering when a veterinarian is faced with a potential clinical diagnosis of a zoonotic disease, or for that matter, even a contagious animal disease.

While many of us carry what would seem to be reasonable levels of veterinary malpractice insurance, it is important to consider that there may well be ramifications of our actions outside the realm of our immediate patient's health. Additional ramifications often translate into additional liability.

Before setting out some examples of instances where a veterinarian's liability may extend well beyond his expectations, there is one additional legal principal that is worth explaining. There is an expression in the world of tort law that states, "You take the plaintiff as you find him."

What does it mean?

If a person acts negligently (a.k.a., commits malpractice) that person is liable for the harm to another person regardless of the condition or pre-existing problems brought to the event by the person harmed.

For example, if you negligently act in such a way that a client gets bitten, you are lucky if that person happened to be wearing a thick sweater and only ended up with a mild infection. You found the plaintiff wearing fairly protective clothing; so lucky you. (See related story, p. 1.) On the other hand, if the plaintiff is wearing a short-sleeved shirt and gets a much deeper bite, you accept liability for harm to that category of plaintiff, too. You are even less lucky if the bite gets badly infected and the client happens to be a young neurosurgeon.

Re-examine the exam room

So, armed with these legal considerations, take a second look at how you handle examination room situations and hospital treatments in cases where a zoonosis is among the items on your rule-out list. Have you taken adequate care to protect yourself against clients who will sue anyone for anything? Have you brainstormed the potential fragility or vulnerability of your potential plaintiff? Let's consider a few examples.

A simple case of hidden potential liability might be something along the lines of a pet that comes in for treatment of a non-specific skin problem. Making the diagnosis may seem straightforward enough. Perhaps the problem is scabies, or maybe ringworm. On the other hand, in an occasional instance the problem may not be so classic and one might be tempted to treat for another condition, leaving the question of the possible presence of a zoonotic disease pending.

While you await the result of the fungal culture or skin biopsy, it might be prudent to advise a client that a transmissible infection could be present and that suitable isolation and sanitary precautions might, at least temporarily, be advisable. Just as importantly, that advice should be documented in the medical record. That way, when several children at the local intermediate school come down with sarcoptic mange after visiting your client's house, you are in the clear. You'll be especially gratified when you find out that one of those kids takes prescription immunosuppressive drugs and can't shake the infection for months.

This example of zoonosis clarifies both of the issues previously described. It is easy to see how in any litigation, the veterinarian being sued for malpractice (not warning against the risks of mange or ringworm) would not only take the plaintiff as he found him (immune suppressed) but also where he found him (next door, down the street, at the local school; wherever the manifestations of the alleged negligence become realized).

Further, it is not hard to imagine that everyone and anyone involved with the transaction could be brought in as a potential defendant. This might include the neighbor whose dog allegedly infected your client's pet, the family doctor, the school, the veterinarian or anyone else even tangentially related to the transaction.

So now you can extrapolate these legal principles to a more potentially serious zoonosis, such as leptospirosis. It is difficult to know early on in the treatment of this disease exactly what type of problem you are dealing with. Initially at least, it tends to be staff members who are at risk when an animal is admitted for non-specific signs of illness. However, if the patient is discharged, even temporarily, while awaiting blood-work results, titers and so on, the public is placed at risk in the event of an eventual diagnosis of leptospirosis.

Therefore, it would be wise to remember some general guidelines for protecting the public health and safeguarding against private liability. First, brainstorm thoroughly during the diagnostic process. Evaluate not only each of the potential categories of illness, parasitic, neoplastic and so on, but also think beyond to what possible zoonotic pathogens could earn a place on the rule-out list.

Then, consider what minor, though seemingly overcautious, steps might be recommended to staff and owners to protect themselves against contagion or spread of illness. Finally, document your suggestions in your medical record. No one can force your clients to use gloves or temporarily isolate their pets. However, you can protect yourself from being caught in a dragnet of litigation by documenting such advice.

Dr. Allen is a partner in Associates in Veterinary Law PC,a law practice specializing in business and legal counsel for veterinarians and their families. He can be reached at www.veterinary-law.com, or call (607) 648-6113.