by Daniel L. Baxter

Regardless of how many precautions you take, you may still face accusations of negligence or malpractice during your veterinary career. Any time an incident that may result in a claim occurs, be sure to:

1. Contact your insurance agent.

If you are made aware of an incident that may lead to a lawsuit or VMB complaint, contact your insurance agent immediately to find out whether you need to file a report with your insurance carrier. Your insurance agent will also be able to help you build your defense against any claims or proceedings you face as a result of the incident. Furthermore, since many policies require timely notification, informing your insurance agent of the incident immediately will ensure that you don’t lose any benefits.

2. Call a qualified lawyer who has experience working with veterinarians.

Some veterinarians are tempted to handle legal matters on their own, especially in the case of VMB complaints. However, attempting to deal with complaints in an uninformed vacuum can lead to unanticipated problems and put you in a compromised position. You may even risk losing your practice if you try to fight these issues on your own. Consult a lawyer when faced with a challenging complaint or potential lawsuit. Even if the plaintiff offers what seems to be a satisfactory settlement, a qualified lawyer should review the deal and make sure your interests are adequately protected.

 by Stephen K. Marmaduke

Discrimination in the workplace occurs when an employer treats a prospective or current employee differently because he or she is the member of a “class” protected by California state or federal law.

Discrimination Basics

In the past, discrimination laws typically pertained to disparate treatment based on an individual’s nationality, race, color, age, religion or sex. However, these laws have now expanded to include ancestry, disability, medical condition, genetic information, ethnicity, marital status, sexual orientation, military or veteran status, political office, gender identity and gender expression.

Enforcement

The laws that prohibit employment discrimination are enforced by various federal and California state agencies, including the Equal Employment Opportunity Commission, Department of Labor, Department of Industrial Relations and Department of Fair Employment and Housing. These agencies can bring actions on behalf of employees, so employees are able to file grievances against your practice with minimal investment or effort.

Preventing Claims

As an employer, remember that your duty to avoid discrimination begins as soon as the hiring process starts. In some cases, discrimination may be unintentional. For example, you may be tempted to choose a male applicant over a female because you believe that the male will have an easier time handling large animals. However, eliminating an applicant solely based on the applicant’s sex is considered discrimination.

 by Samson R. Elsbernd

California Labor Code section 1102.5 (Section 1102.5) protects employees in reporting information that they have reasonable cause to believe discloses a violation of the law, and prohibits employers from retaliating against such employees.  The anti-retaliation prohibition applies even when the information reported by employees does not arise out of the employer’s business, and even if the information relates to private matters.  As one employer recently learned, violating Section 1102.5 can be costly.

In Cardenas v. Fanaian, 2015 WL 5734835 (Cal. Ct. App., Oct. 1, 2015, F069305), a dental hygienist left her ring on the breakroom table.  It was not on the table when she returned, and she eventually came to suspect that it had been stolen.  The employee filed a police report, and the police came to the dental office on multiple occasions to investigate.  After the second time that the police visited, the employer fired the employee because the situation was negatively affecting the workplace.  The former employee sued for retaliation under Section 1102.5, and was awarded $117,768  in damages related to her termination, including lost earnings.  The employer appealed, and argued that Section 1102.5 did not protect the employee because her report to the police was an entirely private matter (e.g., so that the employee could either get the ring back or file an insurance claim) unrelated to employer wrongdoing.  The court of appeal rejected the employer’s argument, and determined that an employee is protected in reporting information concerning a violation of the law.  Period.  The court of appeal, therefore, upheld the award because theft is illegal, and the employee was terminated for reporting what she reasonably believed was a theft.

This decision is a reminder of the costly mistake of retaliating against employees who engage in activity protected under California law.   Employers need to make sure that the grounds for taking any adverse employment actions against their employees are lawful, and should scrutinize the basis for their proposed conduct before implementing any course of action.  This is particularly true when employees have made complaints near in time to any proposed adverse employment action.

DID YOU KNOW…

Employees can bring representative actions under the Private Attorneys General Act (“PAGA”) on behalf of themselves and current or former employees for violations of California Labor Code provisions that provide for civil penalties.  When an aggrieved employee brings a PAGA claim, that claim cannot be divided into an individual claim and a representative claim because PAGA claims are representative actions, brought by the employee as the agent for the State.  As a result, the employee cannot be compelled to arbitrate any portion of the PAGA claim.  Williams v. Superior Court, 237 Cal.App.4th 642, 649 (2015).

 by Daniel L. Baxter

In addition to all of their other responsibilities, veterinarians also have a duty to warn others of animals’ dangerous propensities. As a clinician, you owe this duty to:

• Staff members
• Animal owners
• Third parties

Warning Staff

Ensuring that your staff members understand and account for the dangers of working with animals is one of the best ways to limit the liability of your practice. To protect your staff from injuries:

• Develop clear procedures for identifying potentially-dangerous animals upon intake.
• Educate staff with regard to these procedures.
• Ensure that procedures are consistently followed.

For example, you may implement a policy that requires your staff to label the files of animals with a history of violent behavior and take extra precautions when treating these animals in the future (i.e. muzzles, physical restraints, sedation, etc).

Warning Animal Owners

When you have reason to believe that an animal poses any type of risk, notifying the owner can shield you from liability. For example, if you believe an animal to be especially violent or dangerous, you should warn the owner of this risk. Remember to be consistent when issuing these warnings. You should also document all notifications and warnings for future reference.

Warning Third Parties

In most cases, your duty to warn third parties of potential risks can be satisfied by simply warning the animal’s owner. Since the animal’s owner holds the primary responsibility for the animal’s behavior, he or she will be liable for any injuries or damage the animal causes – as long as you satisfied your obligation to warn of potential risks. However, if you do not warn the owner of a known risk, you may be held liable for these consequences.

For example, assume an animal attacks one of your technicians, but you don’t warn the animal’s owner of its propensity for violence. The animal attacks a third party the following week. In this case, you may be held legally responsible for the third party’s injuries.

 by Stephen K. Marmaduke

ADA and FEHA

Under the Americans with Disabilities Act and California’s Fair Employment and Housing Act, veterinarian practices are required to identify and accommodate employees with disabilities as needed. These laws also prohibit you from discriminating against an employee on the basis of a disability. Covered disabilities include any mental or physical impairment that limits one or more of the employee’s major life activities. For example, if one of your technicians suffers from Type I diabetes, these laws may require you to schedule breaks for that employee at regular intervals so that he or she can check blood sugar levels.

Meal and Rest Periods

In California, workers with shifts lasting at least five hours are entitled to one unpaid meal period of at least 30 minutes. If the employee works more than ten hours in a single shift, he or she is entitled to a second meal period of at least 30 minutes. First or second meal periods may be waived by a mutual agreement between the employer and employee, if the shifts are no longer than six hours or 12 hours respectively.

During unpaid meal periods, your employees must be relieved of all duties. They must also be permitted to leave the office. If they must remain in the office during a meal period, they must be paid for their time. Employers in California are also required to offer one 10-minute break for every four hours worked. If you fail to offer your employees a meal break or a rest break when one is mandated, you owe the employee an extra hour’s worth of pay.

A $750,000 settlement recently paid by a large physician practice group highlights how important it is for organizations to regularly conduct proper HIPAA risk assessments.

The Cancer Care Group (based in Indiana) allegedly failed to protect electronic patient data (“ePHI”) as required by the Health Insurance Portability and Accountability Act’s (“HIPAA”) Security Rule.  The Group’s compliance issues arose after an employee’s laptop bag containing unencrypted electronic patient data was reported stolen out of the employee’s car.  According to the resolution agreement between the Group and the Office of Civil Rights (“OCR”), the Group failed to conduct an accurate and thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of its ePHI.  As a result, the Group did not implement appropriate and effective policies and procedures to govern the receipt and removal of computer hardware and electronic media containing ePHI into and out of the Group’s facility.  This failure lead to the improper disclosure of ePHI related to approximately 55,000 individuals and an agreement to pay $750,000 to resolve the OCR’s allegations.  The Group was also required to enter a three year Corrective Action Plan to come into compliance with HIPAA.

The takeaway for all organizations covered by HIPAA is that one of the most important aspects of an effective HIPAA compliance program is the implementation of regular risk assessments.  These assessments must include a thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of electronic protected health information held by the organization or its business associates.  By conducting these assessments, organizations can uncover and prevent breaches such as those alleged against the Cancer Care Group by implementing appropriate security measures.  Such measures would certainly include ensuring that any electronic health information would not leave your facility unencrypted and sitting unattended in a parked car!

The Resolution Agreement can be found at:
http://www.hhs.gov/ocr/privacy/hipaa/enforcement/examples/cancercare-racap.pdf

 By Anthony R. Eaton

 by Daniel L. Baxter

Veterinarians are exposed to liability threats each time they encounter a potentially dangerous animal in a clinical setting. Fortunately, you have several weapons at your disposal to minimize your risk.

Written Warnings and Notifications

The first line of defense against liability is the use of written warnings and notifications. This encompasses warnings issued to staff members and pet owners, as well as compliance with statutory notification requirements, which are requirements imposed by California law. Examples of statutory notification requirements include:

• Duty to inform law enforcement when you believe an animal has been a victim of abuse.
• Duty to inform law enforcement when you believe an animal has been injured or killed in a staged fight.
• Duty to report injuries occurring at rodeos.
• Duty to report suspicions of a rabid animal or rabid animal bite.

Referrals

In some cases, referrals of dangerous animals can help protect against liabilities.

Prescriptions

Prescription medication can sometimes help with known behavioral problems. However, it is important to provide the animal’s owner with complete, detailed instructions any time medication is prescribed.

Insurance

Since you cannot possibly neutralize every threat of liability, strive to keep appropriate insurance policies in place to protect your practice. The type and amount of coverage you need will depend on the nature of your practice, your specialty and other factors. When selecting an insurance policy, remember to consider your own personal comfort or discomfort with risk, as well as the value of your business and personal property.