An increasingly litigious society and ever-greater humanisation of pets means vets must be vigilant to avoid legal action. By Chris Sheedy
Whether a vet’s patient is a million-dollar racehorse, a $250,000 stud bull, a $100,000 exotic bird or a $25 pet dog, chances of legal action are now greater than ever.
“The family pet is just as valuable to a family as a million-dollar horse is to its owner,” says Dr Tony Thelander, vet practice management consultant from ValuVet and practising veterinarian. “Several decades ago, if an animal died but you’d done your best, then that was that. But today your best is sometimes no longer good enough.”
Why the change? Australian society is becoming more litigious as it follows the US example, Dr Thelander says. Plus, more people now consider their pet a part of their family, a ‘surrogate child’.
“The growth of specialists has also opened veterinarians up to a new area of litigation,” he says. “You need to decide whether you have the ability to treat the animal in your clinic. If you take too long with that decision and things go downhill, or if you treat and things don’t go well, you can open yourself up to legal action for depriving the owner of what could be considered an opportunity for better treatment.”
Scott Ames, principal at Meridian Lawyers—which counts the veterinary industry as one of its specialisations—says this trend is apparent every time he hears of a vet who has been (or is likely to be) sued for damages or somebody has made a complaint about a vet to the relevant state board.
“A common theme across all of those cases is informed consent,” Ames says. “That is whether a vet has properly explained the risks and benefits of a particular course of action and the risks and benefits of the alternatives, which include doing nothing. I am also talking about financial informed consent, explaining all costs that will be involved.”
Making decisions is a minefield
The problem for the veterinary industry is the fact that with every decision comes risk, Dr Thelander says. If treatment doesn’t have a positive effect, if an animal goes downhill or dies, there is an increasing possibility of litigation against the veterinarian.
A presentation about complaints against veterinary practitioners, written by John Baguley from the Veterinary Practitioners Board of NSW, makes fascinating reading. Anybody may make a written complaint against a veterinarian’s conduct, his report says. When such a complaint is received in NSW, it will be investigated—in light of the Veterinary Practice Act 2003 (NSW)—by all eight board members.
The Board of NSW (all states and territories have their own version) comprises one veterinarian representing specialist vets, one veterinarian representing urban vets, one veterinarian representing rural vets, one veterinarian representing academics from vet science, two veterinarians personally selected by the minister and two non-veterinarians representing consumers of vet services.
The group, known as the Complaints Committee, collects information and can summon people to give evidence. They eventually make a recommendation that can be as simple as dismissing the complaint or as serious as suspending or cancelling the vet’s registration.
“Several decades ago, if an animal died but you’d done your best, then that was that. But today your best is sometimes no longer good enough.”—Dr Tony Thelander, consultant, ValuVet
When the Board concludes that a veterinarian is guilty of unsatisfactory professional conduct or professional misconduct, this will likely result in a reprimand or caution, a fine, a payment of costs, or conditions on their registration. If the Board concludes the veterinarian is guilty of professional misconduct of sufficiently serious nature to justify suspension or cancellation of their registration, it must apply to the NSW Civil and Administrative Tribunal for a disciplinary finding against the veterinarian.
The nature of complaints
The Veterinary Practitioners Board of NSW says by far the largest percentage of complaints each year (72 per cent—the research looked at a decade of complaints from 2007 to 2016) were dismissed. Nineteen per cent resulted in a caution to the vet, four per cent were withdrawn, three per cent resulted in a reprimand and in two per cent of cases the vet was removed from the register.
Just as interesting was the analysis of complaints-by-species in NSW. Unsurprisingly, complaints from dog owners overwhelmed all others, making up 67 per cent of the entire batch. Cats came in second at 17 per cent, followed by horses at nine per cent.
As pet owners increasingly anthropomorphise their pets, and as pet ownership itself increases, numbers of new complaints have generally risen every year. The good news is that those numbers fell slightly—in NSW at least—in 2015 and 2016.
How can vets protect themselves?
Once a vet has made all the relevant information including options, risks, potential outcomes and costs available to their client, the next equally important step, Ames says, is to take thorough notes.
“I see quite a broad spectrum of different quality notes,” he says. “At one end I see vets that take excellent notes at the end of every consult. Then there are others who might see 20 or 30 cases in a day and they only write up their notes once they get to the end of the day.”
Some state veterinary bodies, such as Queensland’s, consider that if there is no note for something then it did not happen, Ames says.
Apart from contemporaneous note-taking, what other steps should vets take to protect themselves against complaints and legal action?
Insurance is a must, Dr Thelander says. A minimum is public liability and professional indemnity insurance. Then know what process to follow if you sense a potential problem.
“If a case looks like it may take a turn for the worse, I would suggest the vet contacts the AVA for guidance and support and notify their professional indemnity insurer,” Ames says.
“Most importantly, make sure you always keep thorough notes of all consults and communications with owners. If somebody is making a complaint, as soon as possible thereafter take notes about the complaint so it can be kept as a record. The best defence against allegations where informed consent is an issue is to have good notes.”