October 01, 2004

 

 Legal challenges, now and tomorrow - October 1, 2004

posted September 1, 2004 

Veterinary profession must adopt proactive strategy

 

Veterinarians must educate legislators, judges, and the public about the ways in which veterinary medicine benefits human and animal health, according to attorney Gregory M. Dennis of Overland Park, Kansas.

In so doing, veterinarians have a better chance of preventing ill-conceived laws and court decisions that restrict veterinary practice and could ultimately harm society, said Dennis, counsel for the Kansas and Missouri VMAs.

Dennis spoke Aug. 14 during the AVMA Public Policy Symposium about legal trends affecting the veterinary profession.

Redefining the legal status of animals and allowing emotional pain and suffering claims for the death or injury of a pet are some recent trends in animal law. Yet, other legal developments affect the practice of veterinary medicine itself.

Dennis and other members of the American Veterinary Medical Law Association have noticed a gradual redefining of the statutory phrase "practice of veterinary medicine."

Alternative, complementary, and holistic veterinary medicine, for example, are much more legitimate today, in a legal sense, than they were a decade ago, he said.

Most courts followed the Frye doctrine, which meant scientific evidence was not admissible unless it was generally accepted by the scientific community, Dennis explained.

That changed in 1993 when the U.S. Supreme Court handed down the Daubert decision, which, according to Dennis, relaxed the rules on what scientific evidence is admissible in court.

The ruling declared that scientific consensus about a particular technique, practice method, treatment, or theory was no longer required. Rather, the evidence must only be demonstrated to be scientifically reliable.

"In other words, the environment today will now be more legally receptive to accepting alternative, complementary, and holistic veterinary medicine," Dennis said. The Daubert decision has already been applied to veterinary testimony in court decisions in Montana, Nebraska, Alabama, and Kentucky, Dennis added.

Another legal concern is nonveterinary professionals being legally able to provide direct patient care to animals. This allowance is a result of subtle changes to state licensing laws for other professions, Dennis said.

Consider Maryland. A few years ago, the state acupuncturist practice act was amended to delete "human" and leave "body" in reference to whom or what acupuncturists could treat. The Maryland attorney general then ruled that acupuncturists could treat animals directly, without a veterinary license or under a veterinarian's supervision.

In Oklahoma, the chiropractic practice act allows chiropractors registered with the state chiropractor board—not the state veterinary board—to treat animals directly, without supervision. Chiropractors in Nevada, however, must be registered with the state veterinary board to treat animals.

Once, veterinarians facing disciplinary action dealt only with the state veterinary board. Now, any number of agencies can be involved, from the state pharmacy and narcotic boards to the Environmental Protection Agency and Occupational Safety and Health Administration.

"It's no longer just the state veterinary board you have to be concerned with," Dennis noted.

In the area of telemedicine, nearly every state regulates the practice for human telemedicine. Dennis is aware of only two states—Oklahoma in 1999 and Idaho in 2001—that have adopted laws pertaining to veterinary telemedicine.

Regulation establishes legal boundaries as well as protections. Separate veterinary malpractice suits involving veterinarians on Web sites based in North Carolina and Montana illustrate this point. Dennis recounted how plaintiffs in both cases tried naming as defendants veterinarians living in other states because they appeared on the Web sites.

Because the veterinarians lived outside the states' jurisdictions and because the malpractice had not occurred through the Web sites, the courts wouldn't allow the veterinarians to be sued in the client's state.

For Dennis, the opinions beg the question that, had the malpractice, in fact, happened via the sites, could the veterinarians then have come under the other states' jurisdictions and faced litigation there?

Internet pharmacies are another thorny area for veterinarians. Some Internet pharmacies have gone on the offensive against veterinarians who refuse to write prescriptions for their companies or are publicly critical of them, Dennis said.

In Missouri, the state attorney general has sent letters to veterinarians questioning why they failed to issue prescriptions on request. Nearly, at the same time, the Missouri Pharmacy Board was effectively extending a probation period of a veterinary medication Internet pharmacy.

Allegations that veterinarians engage in unethical and monopoly-like practices may be based on a state veterinary practice act, antitrust law, state merchandising practices act, or even the AVMA Principles of Veterinary Medical Ethics.

As to veterinarian-client confidentiality, only seven states have statutes recognizing the privilege. In most if not all states, however, physicians enjoy the confidentiality privilege, as do psychologists, lawyers, dentists, and social workers.

The AVMA model veterinary practice act recommends that states codify the privilege, which encourages full disclosure so that the professional can make the best diagnosis and provide the best care possible. Courts do not recognize a veterinarian-client privilege unless it is on the statute books.

"Client privilege laws are indicative of a profession, and clearly, veterinary medicine, without any doubt, is a profession," Dennis said.

Dennis recommended monitoring legislation dealing with veterinary medicine and animals, as well as bills pertaining to other professions.

Veterinary medicine faces serious legal challenges now and in the days ahead, Dennis said, and veterinarians will have to adjust to meet them. Success depends on how well they make known their contributions to society and the need for fair and balanced regulation of their profession.

–R. Scott Nolen