Musings of a Veterinarian

How Many Times Do I Have To Ask?

January 20, 2010 By: Dr. K Category: For Vets

Apparently only one. At least that’s what the civil court said in a recent civil complaint against my practice. Let me give you some history.

Mrs. Notesta brought her young cats to our clinic years ago, well before I worked there. At the time, she declined Felv/FIV testing saying, in what typically amounts to a “never”, she wouldn’t test today and that she’d have to think about it. Thankfully, the veterinarian at the time noted this in the record. She declined testing the other 2 cats as well. Fast forward to eight years later when one of Mrs. Notesta’s indoor only cats, Lucky, becomes very ill. She is seen at a local referral center where, over the course of a couple of days she deteriorates and is euthanized. Lab results revealed she had Feline Leukemia Virus (Felv) and it was believed this lead to her death. Felv is not curable or even treatable, leaving cats with a compromised immune system and more likely to develop cancer. Fortunately, none of the other cats in the home were infected.

Mrs. Notesta wrote a letter to the hospital with accusations of negligence and malpractice because her cat was never tested for Felv. She contends that, because Lucky wasn’t tested, the hospital is liable for all medical bills incurred at the referral center, loss of salary for her time off, and other bills accrued during the cat’s illness. Despite having copies of the records with multiple documented refusals and repeated telephone conversations with the practice owner, she announces she will pursue a civil suit against the practice to recover her expenses.

A couple of issues come to mind with this situation:

1. Had the original veterinarian not recommended testing or failed to document her refusal, would Mrs. Notesta have a case?

  • Consider how the cat’s medical care would have evolved had veterinarians known she was Felv positive. Perhaps she would have received more aggressive antibiotic treatment when infections were evident. More aggressive treatment early on may have staved off inevitable illness a little longer.
  • Would Mrs. Notesta have pursued expensive diagnostics and treatments at the referral center had she known the cat was Felv positive and likely suffering complications of endstage Felv? Probably not. Even if the cat was not tested, testing would not have necessary affected the overall outcome. In the above scenario, is the hospital responsible for her bills if it failed to recommend testing?

I don’t know the answers to these questions but I sure look forward to hearing your opinions

2. How many times should you ask an owner about a specific diagnostic or treatment modality, especially if they say “I’ll have to think about it?”

  • The civil court judge  in this case ruled that one instance of documentation of the owner’s refusal for Felv/FIV testing 8 years ago was enough even though there were multiple documented refusals. The lawsuit was dropped, the owner paid her bill to the practice, and we haven’t heard from her again.

I think one additional inquiry about testing is warranted from a medical standpoint, if not a legal standpoint, especially if the owner left the conversation with “I need to think about it.”

3. Can clients construe repeated questioning about testing be construed as bullying?

  • Maybe. It depends on your approach and the client. If a client senses you’re uncomfortable pressing for an answer they usually become uncomfortable themselves. If a client says no, a reasonable response is “Well, if you ever change your mind and want to do that test let us know” or at an annual visit “Are we still holding off on that heartworm test like we did at your last visit? I certainly recommend the test for Fluffy.”

I am not legal expert and can rarely predict which way the court will rule, but I think veterinarians are probably “safe” recommending testing one time for diseases like heartworm and Felv/FIV provided the recommendation is recorded. Informed owners are key; It’s not enough to merely suggest a test but to explain why that test is important. I talk about heartworm disease in depth at least once, typically at a puppy’s final vaccine appointment. I still recommend testing to owners who have repeatedly declined heartworm testing for their dogs. I also discuss the long term affects of Felv/FIV with new kitten owners prior to recommending testing. I am sure to mention testing twice (if needed) and recommend the test strongly for all strays and all never-previously-seen cats.

Perhaps my approach is overkill, but I feel confident that when Mrs. Notesta writes me a letter, I have myself adequately protected.

11 Comments to “How Many Times Do I Have To Ask?”

  1. Dr Koehl: I not your category is under the “for vets” column, but if I may comment from a pet-owners perspective:

    If a judge ruled 8 yrs. ago, it was a valid ruling, the plaintiff lost. This may have been the norm for the last 8 years, but going forward I have my doubts.

    Why? Because there are more and more folks that have obtained records that have been tampered with, post “problem”.

    My suggestion would be that is an owner refuses a test, once, twice or how many, that a signed statement is obtained from that owner acknowledging refusal and the reason a specific test is detrimental for the pets diagnostic care? Pretty simple, you keep the original and hand the owner a copy.

    Now, why wouldn’t the referral hospital “insisted” upon such a simple and clearly diagnostic test in the case you describe? Seems to me a “no-brain-er” at a hospital denoted to be superior quality with superior specialists capabilities?

    And last but not least, how did Mrs. Notesta come upon this referral clinic? If she was sent there buy the original veterinary clinic that has this “documentation”, wouldn’t it behoove both patient and client to make this important fact known?

  2. The issue of whether we should practice more “defensive medicine” as veterinarians is a tough one. It is never wrong to offer a test or procedure you believe will benefit the patient, and it is certainly important to document everything you recommend and every decision the owner explicitly makes in the medical record.

    On the other hand, do we want to head down the road human medicine has travelled where we end up running a CT for a hangnail for legal CYA reasons rather than sound medical ones? (Not that I’m saying thatt’s what you’re suggetsing Dr. K., just that it’s where too much attention to liability issues could lead us.) Ok, I exaggerate a bit for effect, but it is a real problem in human medicine, and not just in terms of costs. And as has been discussed elsewhere, screening tests without a good indication are often a bad idea (http://skeptvet.com/Blog/2009/07/screening-tests-scientific-ambiguity-or-cam-certainty/, http://www.sciencebasedmedicine.org/?p=543). If we test healthy indoor cats for FeLV, the overwhelming majority of our positives will be false, and we will create worry, expense, morbidity due to unecessary diagnostics, and possibly euthanasia more often than we will benefit the patient.

    My own experience with malpracice litigation is that it almost alway arises when a client experiences an undesirable outcome and is still asked to pay the bill. The lawsuits rarely succeed without pretty solid evidence of pretty egregious misconduct, but the expense and demoralizing effect of the process is used as a threat to coerce a practice into giving up on being paid, or simply as a channel for the owner’s sadness and anger at their loss. The best way to protect ourselves against them is to practice and document good quality, evidence-based medicine and communicate thoroughly, gently, and clearly with our clients. Beyond that, we aren’t likely to lose such cases much under the current rules unless we have screwed up to the extent that we might deserve to. Now, if non-economic damage awards become more common, that could be a different story…

  3. Dr. Koehl,
    I think you touched on a point that scares a lot of veterinarians and students alike. On more than one occasion have I had instructors in ethics lectures mention that you have to C.Y.A. (cover your…). In other words, write everything down because a client’s chart is a legal document.

    I do think that clients need to hear recommendations on more than one occasion even if they have declined a test/vaccination/procedure in the past. However, there is a fine line between stressing the importance of FeLV/FIV testing, for example, and sounding like a broken record. In my opinion, the initial recommendation should come in the first appointment. If the client refuses, make a note and try again at the next visit. For something like FeLV/FIV testing, 2-3 refusals with appropriate documentation would be OK for me. If the cat comes in for some sort of illness, this may warrant recommending the test again. That can be assessed on a case by case basis.

    If one moves beyond routine testing and into the realm of core vaccines, I really like the idea of getting a signed waiver. In that case, the client has to acknowledge that the recommendation was made and they are still choosing to decline the service. I’ve really only seen this done with rabies vaccinations and heartworm testing, but there is no reason why the use of waivers cannot be extended to include neutering, baseline testing, dentals, etc.

    I don’t think making a recommendation more than once is overkill. I think it is good medicine. It is the responsibility of the veterinarian as a health professional to educate clients so that they are able to make informed decisions about the care of their pets.

    Thanks for such a thought-provoking post!

  4. Defensive medicine is not going to work, clients can barely afford the care they are receiving. And to assume that “defensive” medicine is needed is grossly way off base. The client & pet only need “honest” medicine.

    BTW, asking for and charging for unnecessary diagnostics falls under the malpractice and fraud umbrella too.

    Lawsuits? I have to sadly laugh at the comment that a lawsuit is to recover a few bucks with the “wrong” outcome. No siree, you would not see a lawsuit, all but rarely, if the state vet boards were doing the job they are “charged” with. Bad apples would be gone, the lazy or incompetent made to get up to standard, simple as that.

    In the case cited above: how many specialists looked at that patient and knew he/she was inevitably “dying”. Just what were the tests performed & results? Was that owner deceived into thinking there was possibility of recovery?

    Or is the common claim among the profession: “oh we can’t really tell , your honor, we’ve only seen 100’s of dying pets”. Sure glad my Mom and her family did not receive this type of run-around, because when it is over—-IT IS OVER!

  5. What, no counter comments? Gee whiz.

  6. Barbara:

    I’m not sure where the idea came that the referral center somehow strung these clients along, perhaps it was in my presentation of the case. For that I apologize. I deemed the details of how the referral center arrived at the diagnosis pretty irrelevant to the spirit of this post. My focus is really on what do vets do when folks decline testing/treatment and how its documented. These folks in this case had zero chance at winning their suit because the refusals were well documented.

    But, to try to answer your questions – While I don’t have much information from the referral center anymore, the owners of the cat did take the animal there of their own volition. The cat was overall “not doing well” and not eating. There was no referral, and therefore no communication with my hospital over the weekend. I trust this referral center (we’ve sent many patients there) and don’t believe there was any purposeful deception. I also have no idea what the owners may or may not have told the referral center re: previous care. There can sometimes be huge gaps in what owners find clinically relevant compared to what a vet finds relevant. An indoor-only cat, quite honestly, is not your typical suspect for Felv so Felv doesn’t jump to the top of my differential diagnosis list in Lucky’s case.

    I can’t speak for another vet’s mindset, but I can speculate based on how I would handle the case. When an animal comes in seriously ill to a veterinary hospital it is common for labwork, radiographs, ultrasound, and aggressive therapy to be instituted. Things move quickly in an attempt to get to a diagnosis while stabilizing the animal. I believe the Felv results came out in the wash and the cat was euthanized. One big issue, touched on by Skeptvet, is false positive results for Felv testing. I would never condemn a cat unless I had duplicate positive test results, typically involving different testing modalities. These tests take time and may explain why the cat was in the hospital for a couple of days prior to euthanasia.

    I think “defensive medicine” is one of the reasons human healthcare is so expensive and I don’t subscribe to it. I pick my diagnostics carefully and typically work in a stepwise manner to a diagnosis. I would never recommend unwarranted diagnostics. In fact, quite frequently I am so severely limited by clients financial constraints that I have to pick the single most rewarding test and hope for the diagnosis.

    I really like all of your similar ideas on consent/decline forms. I lament the paper trail and logistics but think that it may be the smartest way to ensure everyone is on the same page.

  7. I work until 8pm. My blog life happens in the evening. 🙂

  8. VeterinaryStudent, I think so many vets get scared about lawsuits because:

    1. Vets are, on the whole, not wired for law. What we don’t understand scares us.
    2. We have been lax as a profession about charting conversations with clients until recently. Even if we are “doing it right” and recommending the appropriate tests, if we haven’t written it down it’s as if it never happened.
    3. Most of us are “good apples”. (to use Barbara’s term) We don’t want a complaint, lawsuit, or even a jeer. I would hate to lose my license because I forgot to note an owner declined one test long ago. Yikes!

    The warm fuzzy James Herriott days of veterinary medicine are over. Most pet owners want an education and don’t follow recommendations blindly. More and more pet owners are well educated and ask informed questions. That lends to much more discussion, discussion that must be documented in the record.

  9. Dr. K,
    I agree with your reasons why veterinarians are afraid of lawsuits. In fact, I think you’d be hard pressed to find someone in the workforce who is NOT afraid of something they do coming back to haunt them in one way or another.

    I’m always interested in the charting styles of different vets. As you said, if it wasn’t written down, it didn’t happen. Do you think charting is going to improve as clinics start switching to electronic records? I worked for a clinic that was in the process of switching and it seemed like some bits of information fell through the cracks, but other areas were vastly improved.

    While I understand that the James Herriot days of veterinary medicine have passed, I can’t promise I won’t give a small reward to the first patient I see named “Tricky Woo.”

  10. Hey, thanks guys & ladies! As far as the paper trail, every clinic visit I receive “auto printouts” of grooming & boarding information, along with my invoice—sometimes other timely fliers. So printing cannot be that expensive.

    Vet student: I can only swear on my heart & soul, that clients are NOT looking to crucify any honest person—lawsuits? That is such a losing no win for everyone. Do you honestly think the client expects you to read the “pet’s mind”, or know dermatology, internal medicine, radiology, surgery, inside and out?

    Come on, we humans go to specialists or are referred to specialists. It is basics we cry over—SIMPLE basics—101.

    If you make an honest boo boo, say so, make good on it, if you can. I can give numerous personal examples of boo boos corrected—-why? Because I am a good and reasonable person too. Miracles? Hell no, there is NOTHING shameful about pulling a book off the shelf and flipping to the appropriate chapter.

    If you are sincere, caring, and kind—you will NEVER have to worry about documentation. If you are hurried, lax, incompetent, devious,—yes, then you do need to worry. But even the ego-driven get caught, and when they do, it is deserved for all the ones before and the ignorant .

  11. Heifzilla says:

    If you are sincere, caring, and kind—you will NEVER have to worry about documentation.

    I disagree. I used to work in the legal profession and it doesn’t matter how “sincere, caring, and kind” someone is. If the client feels like they were wronged somehow, all bets are off, and you’d better have everything documented, with all t’s crossed and i’s dotted, no matter how caring and considerate you may be.


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