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  News from the Maryland Veterinary Medical Association                                                  Winter 2013

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Panel Discusses Standard of Care at MVMA Fall Conference

The MVMA addressed the standard of care in veterinary medicine with a day-long CE track at its 2012 Fall Conference November 8, 2012. The track concluded with an interactive discussion between conference attendees and a panel of six leaders in Maryland's veterinary community. Panelists included Chris Runde, DVM; Krista Evans, DVM, DACVS, CCRT; David Handel, DVM; Sarah Babcock, DVM, JD; Tanya Lynn Tag, DVM, DACVECC and Thomas Bauk, DVM. Following are excerpts from the conversations. Questions from the audience are in bold, followed by the panelists’ answers.

If you prefer to review the list of questions and read only those answers that interest you, click here.

Younger veterinarians are taught to refer a lot of surgeries with which they are not comfortable. As a practice owner who employs younger veterinarians, I have always encouraged them to do these surgeries to build their confidence. How should we approach that with a client? If we tell them we'd like to do the surgery and we have some experience but also inform them there are more experienced, board-certified surgeons available, is that enough?

Dr. Evans: If you are comfortable doing the procedure and you tell your client about other options and where to find them, you've covered your bases. Your client can make an informed choice. The owner wants a quality procedure but may want to pay less. It is not unreasonable to say, "one of the advantages of having it done here is it may be less expensive."

Dr. Runde: I cannot think of a specific case where a complaint arose when a veterinarian was presented with an animal that needed a procedure, surgical or diagnostic, and an option was given to see a specialist or have the procedure done in house. Be completely open with the client about your level of skill and experience. Dr. Babcock's DR TAP$ philosophy is a pretty good tool to have in your toolbox.

Dr. Handel: I would document everything. This is where your records are your friend. Take an ACL tear, for example. In your practice, you may have a comfort level doing extracapsular repair whereas you may refer a TPLO. So you would record that you discussed the pros and cons of extracapsular vs. TPLO and offered the owner a referral. The owner chose the extracapsular repair at your facility. If you've had an honest discussion with your client, if your client is comfortable with you and your records reflect this, I can't see why you would have a problem.

If you haven't done the procedure before but are willing to try, the same discussion applies. It boils down to your relationship with your clients. Do they trust you? Do you trust yourself? Are you confident you can perform the procedure so you will more likely have a desirable outcome? If you don't, it behooves you to decline the procedure.

Dr. Babcock: Problems start when veterinarians take on more than they can handle or put themselves out there as specialists when they really are not. That is something I would caution against.

Dr. Handel: Maryland code says if you present yourself as a specialist, you will be held to that standard. That's why, if you are a general practitioner, you want to tell your clients you are a good general practitioner but not a specialist, and your documents should reflect that.

What about low cost spay and neuter procedures? What do we need to tell our clients?

Dr. Handel: I believe the public's perception is the low cost procedures are not different. The consumer goes to a lower cost spay or neuter clinic thinking they're getting the same thing --that somehow the clinic, through donations or tax credits, is able to do this at a lower cost. They think they are getting the same service. It's up to general practitioners to say their service is not the same where the State Board views it as it should be the same.

Dr. Runde: If the level of care and service is made entirely transparent to the pet owner at the time they drop the animal off, you minimize the chance they're going to think this $30 cat neuter is the same as the $180 cat neuter they would get at a full service veterinary hospital down the street. You make it clear to them it's not the same service and, if they go down the street, they get a more sophisticated, theoretically safer procedure. If you've done that, stated it clearly in writing, if the case blows up and ends up before our board, you've put yourself in a better position to have that case dismissed.

If the customer knows that the reason the procedure costs $30 is we're doing everything "on the cheap" here and trying to perform a service to the community, then that might work in your favor.

Dr. Handel: Where it would help you the most is you'd be less likely to have a complaint in the first place. Your goal should be to never have a complaint. By documenting the details, your hope is the client understands and has made an educated choice. There may be a percentage of clients that decide to pay more down the street. But for those who opt for the lower cost procedure, they have accepted this and would be less likely to complain.

Are you suggesting that, in addition to telling clients what we will do, we tell them what we're not doing that the more expensive procedure would include?

Dr. Handel: If you are offering a lower cost surgery, I don't know that you have to go into every detail, but you should tell them it is a lower cost procedure and there are things anesthetically and technically that a higher cost procedure might use that you will not be using. You can tell them you are not subsidized and you're doing this because you feel it is for the public good.

Dr. Tag: Emergency clinicians run into this problem a lot. Certainly, we all try to offer what we feel is ideal for patient care. For example, if a cat was hit by a car and comes in with hind area lameness, certainly we have to address shock and then we have to address the fractured area and the pain and stabilization. But when we start talking to the owner about everything we recommend, chest radiographs are typically part of that because of the velocity of the impact.

Most owners, sadly, can't do everything we think is ideal. We document just to make sure it's clear that, whatever we've agreed to, we do offer full stabilization and care. We do that to make sure we've protected ourselves from problems that might arise later.

Dr. Babcock: From an ethical standpoint, just because all of these specialized services are available, it doesn't mean everyone has to go that extra mile. Some people want to be given a choice and allowed to make an informed decision. We also need to step back and try not to make clients feel guilty if they can't afford everything that is available. Be as forthcoming as you can so the individual can make a choice without feeling guilty or without having a grasp of what the risks truly are.

Dr. Handel: I don't ever speak of what a colleague would or would not do. I discuss the pros of what I have described as the best quality medicine I can practice.

If you present what you're going to do and your cost, are you also obligated to tell them about the other facility down the street that will do it for half the price?

Dr. Handel: There are those who debate this, but I don't believe you are obligated to do that. It is up to the client to shop services. It's up to you to do the best job you can and offer your clients reasonable options.

What is the difference between telling someone they can go to a specialist and telling them there might be someone down the street who can perform the procedure better? Why is one okay and not the other?

Dr. Babcock: You have no duty to inform that something can be done cheaper. You have a duty to inform your clients of all of their diagnostic and treatment options, but you don't have to talk about cost options. You have to provide the cost of your services, but you have no obligation to shop around.

Are we obligated to tell a customer that someone could reasonably be expected to do it better?

Dr. Babcock: Better is a judgment call. You can say they have newer technology, they have a board certified practitioner, they have digital radiographs, they have rehab services on site. Those are differentiating services. You have a legal duty to inform that there is a different level of care available, but not a different cost of care.

Let's talk about dentals and whether digital radiography is going to become a part of dentals. Let's say a dental today costs $200 and let's say digital dental radiography becomes the standard of care. If you buy it, you're going to have to charge for it. Let's say you charge $50. You're doing it and let's say you see 15 teeth that should come out and you have to charge $150 to take the teeth out. The cost of your dental has now gone from $200 to $400. Is the cost going to start precluding people from doing the procedures because digital radiography has changed the standard of care? Are we beginning to price ourselves out of the market because of what the standard of care becomes?

Dr. Bauk: As a practitioner, I have the same concern. We're all seeing the impact of this. There is a decrease in the number of visits to veterinarians and, when asked, consumers identified price as the primary reason.

How is the standard of care defined? I picked up a brochure from one of the exhibitors today. It says, "Carbon dioxide lasers have become the standard of care in veterinary surgery." We cannot have claims like this. They're made in national publications as well. I have three or four examples just from the past couple weeks.

As we are held to this type of standard, costs are going to have to go up and customers are not going to be able to afford it. As articles like this are written, expectations increase that this is what should be done.

We're going to have to discuss this. The profession is going to have to decide whether there is a place for different levels of care.

Dr. Babcock: As long as you inform your client and discuss the options, the customer can always decline them. Yes, the standard of care is elevating, but that doesn't mean you have to provide everything. You can just make your customers aware that those options exist. Then document the path forward chosen in a shared decision-making process. You look at all the options and decide what is best for that animal based on all of the circumstances. That maintains the appropriate level of standard of care.

Dr. Evans: The standard of care has elevated because of people specializing. But if it is documented that a client was given all the options and they decided not to pursue those options, I don't know how a veterinarian can be held to a standard of care that the client declined.

We get cases via referral or the emergency clinic and we make recommendations about how the problems should be fixed. If the client can't afford that and asks for other options, I'll present them. For a severe tibial fracture, for example, other options would be to do nothing. I don't recommend euthanasia for a healthy young dog. There are rescue legs. There are casts. I will not be the one to perform the cast because I will be held to a higher standard of practice. But the customer can go back to their regular veterinarian who can put on a cast, monitor the patient with radiographs and see how it's healing. Other options are there and still have their place.

Dr. Bauk: I read an article about extracting a deciduous tooth. It called for a multi-drug anesthetic protocol, pre- and post-extraction x-rays, a mucosal flap bone burring ovular socket, suturing and pain management. If I'm doing a snap spay on a cat for $40, how do I tell the customer it's $500 to get its tooth out? I don't want to feel like I'm providing sub-standard care, so I object when these articles are published and people throw this out as a standard of care. It's unrealistic.

You see one article in the journal talking about how our incomes are going down and the debt loads of students coming out. Then the next one is putting stuff like this out there. It doesn't make any sense. There has to be some balance.

Dr. Handel: On our consent form, we ask for the client's phone number. Frequently, they're not there. So we ask if they would consent to, for dental your example, extractions being done. We try to keep it at a reasonable number, say one or two. If the client consents to nothing else being done, we don't do anything without talking to them, even if we deem it medically necessary.

The other thing is if the client tells you they can spend an extra $200 or $500, that puts pressure on you to compromise. Now you have to decide what absolutely needs to be done today.

What kind of service am I doing if I see them once and never again because the price was too high? It seems better to do things incrementally so I see the customer more frequently.

Dr. Evans: If you're doing regular dentals, that certainly would be better.

Dr. Tag: This is great here because we're on the same page. But that idealistic young associate needs to realize that, even though they might have learned one thing in school, they're going to have to compromise when necessary. I'm not sure they would all do it.

Let's say we've gotten verbal consent from the customer and something goes wrong. We explained the options, documented everything but the customer comes back and denies being told. How do the courts and the licensing board handle that situation?

Dr. Babcock: If you receive oral consent, document it in writing. When it comes down to "he said, she said," your history -- your practice with other clients -- protects you. If you have a pattern of obtaining consent and educating and involving clients in the discussion, I don't believe you'd be in a situation of liability. If you've properly educated that client, they wouldn't turn around on you and say they didn't consent to it.

Dr. Handel: I'd agree from a State Board perspective. The burden of proof would be more on the owner than you. If you do not adequately document this in your records then the burden of proof is on you. But since your records are complete and you've documented the conversation reasonably well, it would be up to the client to prove the conversation never happened.

Dr. Babcock: If you're in doubt, you can always pass the phone to someone else. Obviously, in a euthanasia, you would always do that but, if you're in surgery, put the client on speaker phone so everyone in the room can hear.

Dr. Runde: If you have the conversation and document it in your records, the State Board is going to accept that as long as it looks legitimate and as long as there's a pattern of routinely documenting this sort of thing. If you don't document the conversation, that State Board would not ignore your claim of having the conversation, but it wouldn't be happy about the lack of documentation.

Dr. Babcock: It would be your client's burden to prove you had breached your standard. It's a different burden between the malpractice standard and veterinary licensing board.
Does the court or the State Board ask for additional records to see what veterinarians have done in the past?

Dr. Runde: Yes, we might send an investigator by the office to randomly select records from similar cases to review. Depending on the practice, that could be easy or it could be difficult. I suspect, with today's computer systems, that could be done relatively quickly. They would produce those records and we would have a look at them. That's not something we would do a lot, though.

Dr. Babcock: Either side could request records to submit as evidence in court. I would not recommend just sending, on your own, a bunch of records to support your case because they might find other problems in there.

A lot of practices don't routinely do anesthesia logs for basic procedures such as spay/neuters. It's noted as part of the record of the procedure, but do we need a log for anesthesia?

Dr. Handel: Assuming you have a technician in the room with you while you're performing the procedure, it's wise to have them document what they're checking. It's easy to put together. I believe AAHA has a sample. I would encourage you to have the technician write down basic stuff every few minutes -- heart rate, SpO2, mucous membrane color, periodically check temperature. Hopefully you won't need it. But it's that much more that will protect you and show your standard of care. Something adverse happened in this case, but you did everything you could to monitor the situation.

Dr. Babcock: It's in the patient's best interest too to have a log of the anesthesia you used and how they responded. That will serve as a baseline should a negative outcome occur.

I'm a mixed practitioner and often the only one in my clinic. If I'm doing a C-section on a cat, there is no one else to document anything. That's the difference between an emergency clinic charging $1,800 and me doing it for an old farm client for $400 on Sunday morning. How am I liable for those anesthesia logs that are not being done?

Also, let's say the procedure is done, the kittens are alive, the cat seems fine and I get a call and I'm gone for three hours. What if something happens then? Am I liable for all of these things?

Dr. Babcock: On the civil side, standard of care is determined by an expert witness. So you would find a similarly-situated expert witness who would say it's typical to leave the clinic when I get emergency farm calls. If an expert testifies to that, you would not have breached your standard of care.

Dr. Runde: If you explain the circumstance to your client prior to performing the procedure and they understand the nature of your practice, I don't see where you would be getting into any trouble. The client then makes the choice between your clinic and the emergency clinic. They know the circumstances. As a board, it would be hard to find fault with that.

Dr. Babcock: Even if there are specific procedures that elevate standard of care options, it doesn't necessarily elevate the acceptable standard of care. We still have a standard of care as determined by our peers. If a significant percentage of your peers are doing things the same way, you're fine.

Dr. Handel: During my time on the State Board, I've seen three primary reasons for cases being in front of us. Misunderstanding is by far the biggest reason. We should strive to communicate without clients as best we can. That will help a lot.

Money is also a big factor. That's where estimates and treatment plans are important. If people expect to pay $100 and you give them a bill for $500, they're mad.

The minority of cases that I've seen are relative to malpractice. Communication is first, money is second and malpractice is a distant third. So if you focus on the first two, you'll avoid a lot of issues.

At what point is it the veterinarian's responsibility not to enter into a new client relationship if you're already providing care for another animal? If you're in the middle of that C-section and you get the emergency call, where do you draw the line? When the cat initially recovers from anesthesia? An hour later? When can he take on that case?

Dr. Babcock: He already took on that case because he had an existing duty. It that geographical region, there wasn't an option to call three other people and see if they were available immediately. It's very fact-driven. If you're the only one available and you have to balance the critical cases and communicate with the clients.
How much influence on the standard of your care does a similar procedure in human medicine have?

Dr. Babcock: Your standard of care in a civil suit would be determined by an expert witness that is similar to you. There would never be a situation where a human surgeon would come in to testify on standard of care for a veterinarian. Certainly human medicine impacts veterinary medicine, but it does not impact standard of care.

Dr. Handel: Nothing like that has come before the State Board, nor do I think it would have any weight.

Dr. Runde: Much of our conversation today has focused on expense, technology and specialization. A lot of standard of care has nothing to do with cost. It's tied up in communication, doing a really good physical exam and keeping good records. If you do those three things, these other things don't become factors.

Don't focus too much on whether you have lasers or digital radiography, or whether you know everything there is to know about dentistry in small animal medicine. If you're a good communicator, keep good records and do a good physical exam and follow Dr. Babcock's rules of DR TAP$, you'll go a long way towards keeping yourself out of trouble and being a high quality practitioner.

Going back to DR TAP$, how much needs to be in the records as far as rule outs? If I want to do a chemistry profile on an animal preoperative, do I have to go over every detail of what I'm looking for -- sodium, potassium, creatinine, etc.? Do I have to go over my interpretation of every result or can I just say normal? Do I have to go over every complication that is out there for the surgery or am I okay with the common ones of hemorrhaging, infection, general anesthesia?

Dr. Babcock: Put in the information that would make you comfortable as if you had never seen this patient before and were reading the records. You don't have to put everything in there, but if you wanted a CBC-chem to rule out something specific, note it. And when you're interpreting the results, do the same thing. You need to put enough in there so that if you didn't have results attached to your record another veterinarian could look at it and determine what you wanted to do.

A good exercise, especially if you have a practice with multiple veterinarians, is to play that game. Have lunch bring, some records, and trade. See if another veterinarian can pick up that record and understand the case.

Regarding the interpretation of tests, note any findings you didn't expect. Note any recommended follow-up tests. Again, provide enough information that another veterinarian would be able to pick up where you stop.

So if a referral comes with an x-ray and there's no interpretation of that x-ray, should I record my interpretation of that x-ray even though it was not my x-ray?

Dr. Babcock: If you agree to interpret that radiograph, then your record should include that interpretation. If you order your own radiographs, your record should include an interpretation of those you order. Whatever you rely on in formulating your diagnosis and treatment recommendations should be noted in your records.

Could you review what DR TAP$ means?

Dr. Babcock: DR TAP$ is an acronym for things to be included in your records - Diagnosis, Risks and Benefits, Treatment, Alternatives, Prognosis, and I use a dollar sign ($) because you should always include a cost estimate.

Dr. Handel: As a practitioner I put my top three or four differentials when I see an issue. It's helpful because it gets your thought process going. If it's not on your differential list, you're not going to diagnose it. You don't need every detail, just enough to show your thought process. "Assessed the bloodwork. Elevated BUN and creatinine. Ruled out dehydration vs. kidney failure. Recommend owner drop off a urine sample." That would be a very thorough record and that's not a lot of effort.

Dr. Runde: If someone else looks at your record, they should be able to see what you've done, what your plan is, what your thought processes are and what your chief rule-outs might be.

Regarding blood work, there are minor abnormalities that are not particularly compelling. However, I once had a customer who was furious with me because I told her the blood work was normal and, when she saw the results, she pointed out several minor abnormalities. I had to backpedal and explain to her that none of those abnormalities, taken individually or together, were compelling. So ever since that day, I go over each item and, if it is abnormal, tell the customer but also tell them it is not significant.

Does the blood work ever speak for itself? If it comes back from the lab, the report says it's abnormal. Do you have to note in your records that it's abnormal?

Dr. Runde: It has to be written in the record if it's compelling and it means something in terms of your treatment plan with the case.

Dr. Babcock: Also important to put in the record is a note that you discussed the results with your client, even if that discussion is simply that there's nothing to be concerned about.

Clients communicate with us using cell phones, so we're not making contemporaneous notes, but I may be giving medical advice without the ability to write it in the record at that moment. How do we document those kinds of things?

Dr. Runde: If you make a good faith effort to document those conversations when you are able, the board would look favorably on that. It's part of the deal now that some conversations are difficult to record. In some cases, it would take a really supreme effort to do so.

Dr. Handel: Also, now that we communicate more with e-mail, I encourage practitioners to print their e-mails and make them part of the record.

We still keep paper records along with our computer. The amount of paper we have in each record now is hideous. We have our anesthetic log, our surgical consent forms, our surgical discharge forms, our medical records, two or three other pieces of paper and the inch-and-a-half stack they had sent from their 15-year-old-dog's previous vet. Do we have to keep that?

Dr. Handel: You have to keep your records. As for the rest, if they're of value to you, you might want to keep them. I don't think it's imperative, though.

Can I summarize an e-mail or text exchange rather than printing it? That's what I do with phone conversations.

Dr. Handel: As long as the exchange shows up in your records, yes.

Some animals we know are not going to be around in six months. When we offer all of the options and the owner decides he wants pain management and palliative care for the dog, we'll document that now. For the rest of that dog's life, we'll provide what the animal needs to be comfortable. How do we document that each time?

Dr. Handel: You document it once during that initial visit as you suggested. You don't need to document it on each subsequent visit.

We had a pregnant client whose dog has lymphoma and she came to pick up Cytoxan. I was not comfortable with her handling the medication. What's our liability with that?

Dr. Babcock: That might warrant having her talk to her physician. Even if you aren't at fault, you wouldn't want to be blamed later for anything that might have gone wrong.

Dr. Handel: A safe answer would be to see if there's someone else in the home who could handle the medication during her pregnancy. I would certainly document that you warned her about your concerns. If you want to provide an additional service, tell her to bring in the dog and your staff will administer the medication for free. It may be a hassle, but it's an option you can offer to make a good-faith effort.

Dr. Runde: Many computer systems will generate safety data sheets for the medications you dispense. Depending on what you're using, you may already have something you can print for your customers. That's not the same as having a conversation, but it's a supplement.

Why is handwriting important in our records?

Dr. Babcock: You need to be able to hand off those records to someone else who might take on the case. That person needs to know exactly what has been done, the status of the animal and the treatment going forward. If they can't read your writing, they can't provide treatment to the animal. Computer records help, but your writing must be legible as well.

Dr. Runde: The regulations specifically say the writing needs to be legible.

We provide 24-hour care. On our consent form, it says no one is there 24 hours a day. The animals are checked between 10 and 11 p.m. and someone is there by 7 a.m. Is that good enough?

Dr. Handel: I'm a general practitioner in the same situation. It behooves you if you are going to sedate a patient, you should make sure it is adequately stable before you leave. If it's your opinion that the animal should go to the emergency clinic, recommend it. If the patient declines, note it in your records.

Dr. Babcock: I would never classify someone's services as expensive or inexpensive, I would tell customers what they're getting for what they pay. Here you leave your animal that is not awake and no one is here. Give them a price. Tell them the risks. Then tell them the alternatives.

Dr. Runde: In Calvert County, we have an emergency clinic with an overnight monitoring service that is $150 if you're a shareholder. If you have a animal that needs to be monitored overnight -- just basic monitoring -- it's a standard package. That seems to work for us.

When animals are in the clinic being boarded, is that clinic responsible for any care the animal needs for something that happens in that facility?

Dr. Babcock: You would be responsible for returning the animal to the owner in the same condition as when it was dropped off. You should have a contract in place that authorizes you to perform whatever emergency services are needed.

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