By Daniel L. Baxter

The term “duty of care” refers to the way in which you must interact with your clients and patients in order to satisfy the requirements of the law. For California veterinarians, this amounts to:

Since “current” veterinary practice standards are continuously evolving, the duty of care evolves as well.

Negligence

When a veterinarian fails to meet the required standard of care, he or she may be guilty of “negligence.” In order to establish veterinary negligence, a plaintiff must show that:

Examples

1. A client brings her cat Lucy in for her annual shots. An inappropriately high dosage is administered, and the animal dies as a result. In this case, the client can sue for negligence because the veterinarian:

2. A client brings his dog Fido in for a checkup. After collecting the necessary information and obtaining consent to treatment, the veterinarian administers an appropriate heartworm prevention medication at the correct dosage. The animal has a severe and highly unusual reaction to the medication. In this case, the veterinarian is not guilty of negligence. Even though the veterinarian’s actions were a cause of the animal’s injuries, he or she was acting in accordance with accepted standards of care, and most other veterinarians would have made the same choices.

 By Thomas G. Redmon

What is the “Cite and Fine” Program?

The Veterinary Medical Board’s “Cite and Fine” Program was first implemented in 1990 to aid in the processing of complaints made against veterinarians. These guidelines are used to address violations of the law that are not serious enough to warrant criminal prosecution or the suspension or revocation of a veterinarian’s license to practice. In these cases, the VMB issues a citation, and the veterinarian must pay a fine.

Common “Cite and Fine” Issues

Examples of issues that may result in a citation and fine include:

• Discipline of license in another state
• Unprofessional conduct
• Animal abuse or cruelty
• Failure to keep premises and/or equipment clean and sanitary
• Record keeping violations
• Record confidentiality violations

Of these issues, one of the most common citations veterinarians encounter is inadequate recordkeeping. This issue can result in a citation on its own, or it can complicate other actions initiated against the practice. In general, the VMB holds to the belief that information not contained in the records cannot be taken as fact. Thus, this issue often acts as a jumping-off point for more extensive disciplinary actions.

For example, assume a client brings action against your practice on the basis that you did not provide competent care to her pet. Even if the client’s story is misleading, embellished or completely inaccurate, you won’t have a leg to stand on if you don’t have detailed records to support your side of the story. The VMB won’t simply take your word as fact if you have no written documents to back up your position. Thus, you may find yourself facing unnecessary penalties simply because you failed to keep adequate records.

David A. Frenznick and Ernest James Krtil, have been listed in the 2016 Edition of Best Lawyers in America.

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For the 2016 Edition of The Best Lawyers in America©, 6.7 million votes were analyzed, which resulted in more than 55,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor.Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

David A. Frenznick – Litigation, Real Estate

David has extensive and broad experiencein the areas of complex civil litigation, with particular emphasis on the representation of residential and commercial property owners in construction-related disputes. David represents homeowners, homeowner associations, developers and contractors in real estate cases, as well as complex construction defect claims involving multiple single-family residences and multi-unit developments.

Ernest James Krtil – Closely Held Companies and Family Business Law

Jim’s depth of experience in his practice emphasizes business law including mergers and acquisitions, nonprofit organization law and taxation, as well as estate planning and probate and trust administration, including trust and estate disputes.

 By Samson R. Elsbernd, Esq.

Employment agreements commonly include a provision designating the place or forum where any employment related-claims must be litigated.  Ordinarily, the party opposing a forum selection clause has the burden to demonstrate that the clause should not be enforced.  However, the burden is reversed when the underlying claims are statutory rights that may not be waived, such as California Labor Code provisions concerning employee compensation.  In such cases, the party seeking to enforce the forum selection clause must demonstrate that the forum selection clause will not diminish the statutory rights; otherwise, the clause will not be enforced.

In Verdugo v. Alliantgroup, L.P., 237 Cal.App.4th 141 (2015), the employer was  headquartered in Harris County, Texas, and had regional offices in other states, including California.  The employer hired an employee to work at its California office, and required her to sign an employment agreement.  The employment agreement included a forum selection clause designating Harris County, Texas as the forum for litigation.  The employee filed a lawsuit in California based on various provisions of the California Labor Code concerning proper pay, meal and rest breaks, and wage statements that the Legislature declared cannot be waived by private agreement.  The employer moved to stay the action based on the forum selection clause.  The employer did not demonstrate that Texas would have applied California law, or, that Texas provided the same or greater rights as California.  As a result, the California court of appeal did not stay the action and the lawsuit continued in California.

Employers with California employees should review their forum selection clauses because forum selection clauses that violate California’s public policy on employee compensation will not be enforced.  Employers desiring to litigate employment related claims outside California should determine the likelihood that the clauses will be enforced.  Provisions designating California law as the applicable law (choice of law provision) may make it more likely that the forum selection clause will be enforced, provided that the forum state would enforce the provision and apply California law.  Or, employers may just need to consider alternative forums for claims by their California employees.

DID YOU KNOW…

Generally, prevailing parties in civil litigation are entitled to an award of their litigation costs.  Not necessarily so with respect to claims under the Fair Employment and Housing Act, or FEHA.  In FEHA cases, the California Supreme Court recently ruled that prevailing employees should ordinarily receive their costs (and attorney fees), but prevailing employers should not be awarded costs (or attorney fees) unless “the action was objectively without foundation when brought, or the [employee] continued to litigate after it clearly became so.”  Williams v. Chino Valley Independent Fire Dist., 61 Cal.4^th 97, 115 (2015).