Legal implications of understaffing of specialty departments of veterinary teaching hospitals

Megan Nunemacher Veterinary Medical Teaching Hospital, School of Veterinary Medicine, University of Pennsylvania, Philadelphia, PA 19104.

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Charlotte Lacroix Veterinary Business Advisors Inc, Countryside Plaza North, Bldg E, Ste 1403, 361 Rte 31, Flemington, NJ 08822.

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Greg Dennis Kent T. Perry and Co LLC, 7300 W 110th St, Overland Park, KS 66210.

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At various times during their careers, most veterinarians in general practice will face an exceptionally complex, difficult case that causes them to feel they are not capable of providing the level of medical care needed by that particular patient, either because of a lack of appropriate equipment or facilities or a lack of specialized training and knowledge. In these instances, the veterinarian may have a responsibility to refer the case to a specialist so that the patient may receive the appropriate level of care. When a case is referred not to a specific individual for treatment but to a specialty practice, whether that be a university-based veterinary teaching hospital or a privately owned veterinary specialty practice, the assumption is that the specialty practice actually has the appropriate specialists, equipment, staff, and facility necessary to provide the required medical care. But, what if this is not the case? In particular, what if the appropriate specialist is not available when the patient arrives?

University-based veterinary teaching hospitals take pride in providing their patients the highest possible level of veterinary medical care. In pursuit of this mission, they employ veterinarians certified by the AVMA-recognized veterinary specialty organizations as being specialists in their chosen field. But, board-certified specialists at university-based veterinary teaching hospitals have multiple duties beyond providing veterinary care to their patients, including instructing residents, interns, and students; conducting research; reviewing scholarly journals; participating in speaking engagements; and attending continuing education conferences.

In particular, attendance at continuing education conferences is important for specialists because it provides them an opportunity to further their training and increase their knowledge, while lecturing at continuing education conferences allows them to enhance their careers, contribute to the advancement of their specialty, and promote goodwill for the veterinary teaching hospital with which they are affiliated. The opportunity for specialists to network with veterinarians in general practice may also potentially lead to an increase in the number of cases referred.

Nevertheless, all of these additional duties for board-certified specialists at veterinary teaching hospitals mean that there will be times when specialists are unavailable and unable to care for patients. Because many veterinary specialty organizations have a single annual meeting, with limited opportunities for relevant continuing education outside of that meeting, there may be a tendency for all or most of the individuals involved in a particular specialty at a veterinary teaching hospital to want to attend the specialty organization's annual meeting, leaving that particular specialty service understaffed or unstaffed during that period of time.

In planning for such periods, veterinary teaching hospitals must consider whether they will temporarily close the specialty department or allow the department to remain open, potentially with individuals who are not board-certified specialists providing care. From a business perspective, veterinary teaching hospitals may be reluctant to defer referrals, even if only for a brief period, because this may result in a loss of goodwill if referring veterinarians and pet owners encounter gaps in service. On the other hand, the hospital must consider the ethical and legal risks of having inexperienced or unqualified individuals providing specialty care.

A Hypothetical Case

Consider the case of a veterinarian in general practice who, after seeing signs of an enlarged heart on thoracic radiographs of a dog, decides to refer the case to a nearby university-based veterinary teaching hospital for further evaluation and treatment. On the day of the appointment, however, all of the hospital's board-certified veterinary cardiologists are attending an out-of-town continuing education meeting and unavailable for consultation. Therefore, the dog is examined by a second-year cardiology resident, who performs a thorough workup, formulates a diagnosis, and develops a treatment plan to which the owner consents. Despite this treatment, the dog dies 2 weeks later.

When a necropsy fails to confirm the resident's diagnosis, the owner initiates both a civil lawsuit and state licensing board action against the teaching hospital, alleging that the dog had received substandard care and that this substandard care had resulted in the dog's death. The owner's attorney claims that the teaching hospital was guilty of veterinary malpractice, breach of contract, common law fraud, and statutory deceptive trade practices because the teaching hospital had advertised that it offered a full-service veterinary cardiology department operated by board-certified veterinary cardiologists, this representation had been a major factor in the owner's decision to bring the dog to the teaching hospital for care, and the teaching hospital had failed to disclose to the owner that no cardiologists were present during the dog's evaluation. The owner also initiates actions against the resident, claiming that the resident was guilty of medical malpractice for accepting a case beyond the resident's expertise.

Veterinary Teaching Hospital Policies Regarding Specialist Leave

In an effort to explore the likelihood that a such a scenario might occur, a survey was e-mailed to the hospital directors of all 28 university-based veterinary teaching hospitals in the United States. Responses were gathered through e-mail and telephone conversations. Twenty of the 28 hospital directors replied, although 1 did not complete the survey because the hospital did not have any board-certified specialists on staff at the time.

Fourteen of the 19 responding teaching hospitals indicated that they had identified concerns related to absence of their board-certified specialists and had adopted written or oral policies related to this topic. Ten of the 14 hospitals with policies required that at least 1 specialist remain at the hospital to supervise the care of hospitalized patients or, if this was not possible, that the department be closed. Two hospitals allowed specialists from a related department to provide coverage during the temporary absence of specialists from a department (eg, internal medicine specialists could provide temporary coverage for the cardiology department). Six teaching hospitals stated that they would permit residents to temporarily run a specialty department if the specialists thought that the residents were sufficiently trained to handle the responsibility.

Nine teaching hospitals reported imposing different coverage requirements for specialty departments on the basis of number of board-certified specialists in the department. In general, departments consisting of only 1 or 2 specialists could be closed for short periods, with no regular appointments scheduled, to allow all of the specialists to attend the same conference. Departments consisting of 3 or more specialists were required to remain open, with at least 1 specialist physically present to supervise residents and assist with patient care.

All but 1 teaching hospital reported making efforts to reduce the caseload for remaining specialists when one or more specialists were absent from a department. Methods used to decrease the caseload ranged from decreased scheduling of regular appointments to accepting only emergency cases to directing some cases to other specialty practices. All of the responding teaching hospitals stated or implied that emergency cases would be accepted even if a particular specialty department was technically closed.

With regard to whether hospitals had policies in place to notify referring veterinarians and pet owners of understaffing or temporary closure of a specialty department, 11 hospitals notified referring veterinarians who wished to refer a client when there were no specialists available to accept the case. Although most teaching hospitals did not specify the procedure used to notify referring veterinarians, one stated that such notifications were posted on its Web site. Only 4 teaching hospitals documented in their records when a referring veterinarian was notified about understaffing or temporary closure of a specialty department.

Eight of the 11 teaching hospitals that notified referring veterinarians about understaffing or temporary closure of a specialty department also notified clients when they called to schedule an appointment. One hospital left it to the discretion of the referring veterinarian as to whether the owner would be notified. Another notified clients only if they asked for a specific clinician and that clinician was unavailable. Again, only 4 hospitals documented these client communications. None of the teaching hospitals reported using forms that required clients to acknowledge that they had been informed that their animal might not be examined by a board-certified specialist.

Finally, when respondents were asked whether they were concerned about liability associated with under-staffing or temporary closure of a specialty department, all indicated that they were concerned about liability in general, but only 4 reported concerns regarding this specific risk. Some respondents reported having received complaints, although no lawsuits had been filed, and some respondents thought they were protected from lawsuits by disclosing information to clients. Many of the respondents with policies in place reported that they thought these policies helped protect them from lawsuits. Other respondents believed that because their hospitals were teaching facilities, clients were generally aware that their animals might not always be under the direct care of a board-certified specialist.

Legal Liability

Even if lawsuits have not previously been filed, veterinary teaching hospitals should be concerned about the potential for liability associated with receiving cases for specialty care in the absence of individuals trained in the appropriate specialty. Human hospitals face a similar situation, and cases have been filed against them alleging ordinary negligence, professional negligence and malpractice, comparative negligence, violation of the informed consent doctrine, common law fraud, intentional misrepresentation, negligent misrepresentation, false advertising, negligent referral, breach of express warranties, and breach of implied warranties.

Of course, this depends somewhat on state laws and specifically on whether the veterinary teaching hospital is covered under a state tort immunity act. Such laws may prevent or substantially impair the ability of a pet owner to sue a university or university-employed veterinarian. This is typically the case when the university hospital is owned or operated by the state government.

With regard to the previously described hypothetical case, the fact that the resident's diagnosis was not supported by the necropsy findings was not itself evidence of malpractice, as most clinicians agree that results of physical examination and diagnostic testing may suggest multiple diagnoses. Presumably, most veterinarians would have supported the resident's actions if the imposed treatment plan was appropriate for at least one of the likely diagnoses. In determining whether the resident or veterinary teaching hospital was negligent, it is important to consider whether a board-certified specialist would have managed the case differently and, if so, whether this would have resulted in a better outcome. Additional considerations are whether the expected standard of care is different for residents than it is for specialists, whether the appropriate standard of care depends on expectations of the owner, and whether the owner was informed that the attending clinician was a resident and not a specialist.

To bring a successful malpractice lawsuit against a veterinarian or hospital, the plaintiff must prove the following 4 elements: the veterinarian or hospital had a duty to exercise care in delivering veterinary service to the plaintiff, the veterinarian or hospital did not provide the standard of care that would have been provided by a veterinarian or hospital in similar circumstances, the animal or plaintiff was harmed, and the failure of the veterinarian or hospital to provide an appropriate standard of care caused the harm. Generally, a duty of care is established on initiation of a veterinarian-client-patient relationship. Thus, much of any malpractice case typically revolves around whether the standard of care was followed.

Several cases address the question of whether residents should be held to a standard of care more similar to that of general practitioners or board-certified specialists, with variance in their response to this question. In Reeg v Shaughnessy,1 the federal district court in Oklahoma found that specialists are held to a higher standard of care relative to that required of general practitioners, and stated that it would be improper to hold the defendant general practitioner to the standard of care of an orthopedic surgeon in as much as the defendant was not board certified in that specialty and had not held himself out to be an orthopedist. However, the court agreed that it was proper to hold the defendant to a higher standard of care than that required of a general practitioner, given the defendant's additional expertise and training, which included numerous orthopedic operations.

Similarly, the case of Jistarri v Nappi2 illustrated that a resident could be held to a lower standard than a board-certified specialist. That case involved a claim that an orthopedic resident was negligent in applying a cast to a patient's broken wrist, causing ulceration by failing to provide adequate padding. The jury exonerated the resident, but the plaintiff appealed, arguing that the trial court had not properly instructed the jury that the standard of care owed by a resident should be that of specialist. In rejecting this argument, the Pennsylvania appellate court concluded that

the trial court did not err in instructing the jury to apply to [the orthopedic resident] a standard of care higher than that for general practitioners but less than that for fully trained orthopedic specialists. Such an instruction recognizes that [the orthopedic resident] has had more training than a general practitioner but less than a fully trained orthopedist. To require a resident to meet the same standard of care as a fully trained specialist would be unrealistic. A resident may have had only days or weeks of training in the specialized residency program; a specialist, on the other hand, will have completed the residency program and may also have had years of experience in the specialized field. If we were to require the resident to exercise the same degree of skill and training as the specialist, we would, in effect, be requiring the resident to do the impossible.

In its conclusion, the court indicated that while its ruling might be favorable for residents, it did not mean a hospital could escape liability for the negligent acts or omissions of its residents. This has clear implications for veterinary teaching hospitals that allow residents to care for cases without supervision. If by doing so they require the residents to do work beyond their skill level, it may be possible that the hospital will be held liable if something goes wrong.

The standard of care expected of a resident may also depend on whether the resident or teaching hospital has represented the resident as having the same qualifications as a board-certified specialist. It is common to find provisions in state practice acts or board regulations making it unlawful for a physician or veterinarian to advertise, represent, or imply that he or she is board certified in a particular specialty unless he or she is, in fact, a specialist. In Somberg v Sobol,3 for instance, a physician's license was suspended for 1 year and the physician was fined $10,000 for having falsely stated that he was board-certified in internal medicine and cardiology. Similarly, the Principles of Veterinary Medical Ethics of the AVMA, which do not have the force of law, although they have been expressly adopted or used as guidelines by some state veterinary boards, declare that “[i]t is unethical for veterinarians to identify themselves as members of an AVMA-recognized specialty organization if such certification has not been awarded.”

Even if residents are clearly identified as being in a training program, they may be found to have held themselves out as specialists simply by being residents. In Valentine v Kaiser Foundation Hospital,4 which was overruled on other grounds,5 the court found that a first-year obstetrics and gynecology resident held himself out as a specialist by no more than the fact that he restricted his practice to a specialized field. The court strictly delineated general practitioners and specialists and made no separate classification for residents.

These examples illustrate that residents should fully disclose their level of training to potential clients and that teaching hospitals should take care not to misrepresent their residents' capabilities or ask them to perform tasks beyond their abilities. A resident who is not comfortable performing a procedure without supervision should feel comfortable discussing this with his or her supervisor.

Allegations of misrepresentation may be applied to veterinary teaching hospitals that advertise that they offer a particular service involving specialists if there are no specialists available at the time patients are presented for care. Veterinary teaching hospitals claiming to have board-certified specialists on staff should be certain that their representations are not misleading. For instance, their communications should indicate that board-certified individuals might not always be present at the hospital or available for appointments. Misleading or deceptive representations relied on by a client can lead not only to disciplinary action from the state board but also to civil liability. The case of Atkins v Children's Hospital of Alabama6 involved a multimillion dollar wrongful death action arising from the death of a child. Claims were brought against the hospital, its supervising board-certified physicians, and the treating residents. Although the hospital and a treating resident were found liable, the supervising board-certified physicians were not. The jury returned a verdict in favor of the parents' claim that the hospital had misrepresented to them that their child would be treated by a board-certified pediatric surgeon when, in actuality, the child was treated by “medical students, unlicensed physicians, and others.” Similarly, in Foster v George Washington University Medical Center,7 the Court of Appeals for the District of Columbia ruled that it was proper for the trial judge to have instructed the jury that a part of the plaintiff's claim of the hospital's negligence could be based on the fact that the hospital allowed a resident to deliver a baby without first obtaining the mother's consent for the resident to do so.

The Principles of Veterinary Medical Ethics of the AVMA state that advertising is ethical when there are no false, deceptive, or misleading statements or claims. In ascertaining whether veterinary teaching hospitals have an obligation to disclose the absence of a board-certified specialist to referring veterinarians and animal owners, one must reference the laws and regulations that govern the practice of veterinary medicine in the state where the hospital is located. Like the Principles of Veterinary Medical Ethics, state veterinary practice acts and board regulations tend to have provisions prohibiting veterinarians from making false or deceptive statements or statements likely to deceive or mislead the public in their advertisements. Some states have held that misleading or deceptive advertising does not require proof that the misrepresentation was intentional, rather than inadvertent, stating that misrepresentation alone may be sufficient to constitute a violation.

Developing a Policy Related to Specialist Leave

Given the potential for legal liability, veterinary teaching hospitals would be wise to adopt a written policy related to absence of their board-certified specialists and describing alterations to scheduling and methods for informing referring veterinarians and potential clients when a specialty department is temporarily under-staffed or unstaffed. Similarly, although the previous discussion has focused on veterinary teaching hospitals, the same concerns may apply to some privately owned veterinary specialty practices. In implementing such a policy, the hospital should designate an individual who understands the issues as being responsible for enforcing the policy and for mediating disputes between specialists in the same or from different departments. Importantly, having a written policy should not be considered sufficient to prevent malpractice claims, and the hospital and its individual veterinarians should be adequately covered by a malpractice liability insurance policy that includes veterinary state board coverage.

The policy on absence of board-certified specialists should specify the coverage requirements for individual specialty departments. Often, coverage requirements will vary depending on the number of board-certified specialists that constitute the department. Departments made up of only 1 or 2 specialists, for instance, might be permitted to temporarily close so that all specialists could be absent at the same time. However, limits on how long the department can be closed (eg, no more than 3 regular appointment days) should be established and some method should be developed to arrange to accept emergency cases or to direct such cases to specialists at other hospitals. In addition, criteria should be developed for determining whether the department might be kept open by, for instance, providing coverage with residents or specialists from other departments. If the department is kept open with residents managing patient care without direct supervision from board-certified specialists, then provisions should be made to ensure that at least 1 specialist is available for consultation by telephone at all times.

For larger departments (eg, departments with r 3 board-certified specialists), it might be more appropriate to require that specialists schedule their planned absences such that at least 1 will be available at all times to provide direct supervision of residents, interns, and students and oversee patient care. The hospital may wish to encourage scheduling for planned absences by requiring that all board-certified specialists submit their leave requests some specified time in advance.

In general, veterinary teaching hospitals would be well-advised to schedule appointments that require specialty care only when a board-certified specialist will be at the hospital. Thus, in its policy on absence of board-certified specialists, the hospital should address methods for altering its normal scheduling practices when a specialty department is understaffed or unstaffed. For example, a department might attempt to reduce the caseload by decreasing the number of appointments scheduled or by accepting only emergency cases when there are fewer-than-normal numbers of board-certified specialists available. Specific departments might also maintain a list of alternative institutions where cases can be referred when the department is unable to provide appropriate veterinary services, although the hospital should recognize that if its specialists are absent while attending the annual meeting for that specialty, then it is likely that specialists from other institutions may be absent also.

Finally, the hospital policy on absence of board-certified specialists should include provisions outlining methods for notifying referring veterinarians and potential clients when a particular specialty department is understaffed or unstaffed. For example, receptionists could be instructed to notify referring veterinarians of specific dates when there will be no specialists available to treat cases in a particular specialty. In these instances, the receptionists should document this communication in the hospital's communication log or appointment book. Some veterinary teaching hospitals may use the World Wide Web to distribute this information by requesting that their Web site manager add a calendar highlighting days when no board-certified specialists will be available for each department.

If the hospital chooses to allow residents to see appointments while all board-certified specialists are away from the department, the receptionist should inform clients that their animal will be seen by someone other than a board-certified specialist. The client's consent should be obtained, and this consent should be documented in the animal's medical record. If a computer system is used for scheduling purposes, it may be possible to add a feature that prompts receptionists to notify clients when trying to schedule an appointment on a date when no board-certified specialists are available.

If the hospital chooses to allow residents or specialists from other departments to accept cases on an emergency basis, the hospital should communicate to the referring veterinarian and client that the hospital is willing to accept the case and will attempt to stabilize the patient but that there are no board-certified specialists in the specific area of concern available to examine the patient.

Veterinary teaching hospitals should obtain the consent of the animal owner or authorized agent if the animal will be treated by a resident, rather than a board-certified specialist. Also, the owner or agent should be informed in writing that over a continuing course of treatment or hospitalization, the animal might not always be directly treated by a board-certified specialist.

The hospital may wish to adopt additional practices to ensure that clients are fully informed if their animal is not being treated by a board-certified specialist, such as a reminder when the clients are called to confirm the appointment or a form clients are required to sign when they check in for an appointment. However, the benefit of these measures must be weighed against the increased administrative burden placed on the hospital staff.

Conclusion

Veterinary teaching hospitals should be aware of the potential liability that exists when specialty departments are understaffed or unstaffed because of temporary absences of board-certified specialists. Adopting a written policy with clear guidelines for handling when absences will be allowed, how departments will respond to absences, and how referring veterinarians and owners will be notified of temporary absences may help prevent misunderstandings. Just as general practitioners have a responsibility to admit when patients' needs are beyond the scope of their capabilities, veterinary teaching hospitals have a responsibility to admit when board-certified specialists are not available to provide patient care. Teaching hospitals should ask themselves whether they are prepared to defend allegations of negligence if, for example, a poor outcome were to occur after a resident treated an animal without appropriate supervision. Previous lawsuits suggest that veterinary teaching hospitals are indeed at risk. Thus, they should take every effort to ensure that they are protected.

References

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