By Stephen Marmaduke, Wilke Fleury LLP

This article was originally printed in the November/December 2022 issue of the California Veterinarian magazine.

For years, the CVMA and this author have stressed the importance of maintaining medical records in compliance with Title 16, California Code of Regulations Section 2032.3. As always, you are encouraged to review this regulation and refresh your familiarity with its requirements. But there’s more!  

Section 2032.3 sets forth the minimum requirements that are enforced by the Veterinary Medical Board (VMB). Comprehensive medical records that go beyond the minimum standards are a key component of protecting practitioners from civil liability to the public. Further detailed documentation may be an effective shield from consumer complaints that could lead to negative social media blasts. This article, the first in a two-part series, highlights several disparate areas that should be addressed and documented in a patient’s records for the protection of the practitioner.

Who is the Owner?

16 CCR Section 2032.1(a) states that without having first established a veterinarian-client-patient relationship (VCPR), it is unprofessional conduct for a veterinarian to administer, prescribe, dispense, or furnish a drug, medicine, appliance, or treatment of whatever nature for the prevention, cure, or relief of a wound, fracture, or bodily injury or disease of an animal. Further, it is the client who must authorize treatment, care, and more. Given that failure to establish a VCPR is an expressly denoted item of “unprofessional conduct,” the establishment of this relationship should be documented in the patient’s record. There is not, however, a clear statutory or regulatory definition of the term “client.” The practical definition is that the client is the one who presents the animal for care representing that they have the authority to authorize such care.

Consumers, however, perceive themselves as “owners,” not clients. Putting philosophical debates over the concept of “ownership” aside, there is a subtle difference between how the VMB and a consumer may view the authority to authorize care, and the corresponding responsibility to pay for care. All too often, veterinarians find themselves caught in the middle of a dispute—often a nasty relational conflict or break-up—over ownership of/control over the care of an animal. This can leave the veterinarian with an unpaid bill, threats of liability, and the subject of negative media blasts.

The initial intake record should clearly establish who claims “ownership” of the animal and who is authorized to make judgments regarding care (i.e., assume the role of the client in the VCPR). It is best that this declaration be made in writing (e.g., a preprinted registration form), is signed by the declared owner, and is incorporated into the medical records. There may be instances where a non-authorized person assumes the client role—such as a neighbor, friend, or family member caring for the animal. In this case, an effort should be made to contact the “owner” for telephonic or electronic authorization for this individual to make decisions. It may not be possible to make contact in all instances, but the effort and documentation are important and should be included in the file.

Taking a few simple steps to establish that care was authorized by a person with authority can be helpful to avoid unpaid veterinary bills or threats of liability. It would be difficult for an owner to disclaim responsibility for a payment authorized by a family member or neighbor when they provided written authority for such decisions. While documentation does not solve all problems—and veterinarians still get stuck between warring parties and the need to provide care—this commonsense approach provides some protection from angry consumers and civil liability.

Phone Logs — Counter Notes

After my legal review of a medical chart, it is not uncommon for the veterinarian to tell me “the rest of the story.” Much of that story may consist of a quick telephone call, a discussion between the owner and receptionist, and/or a text message or a long-since-deleted email.

Direct interactions between the treating veterinarian and the owner have become more challenging with COVID restrictions and “contactless” care, as pets are delivered from a parking lot. The inability of the veterinarian to speak directly to the owner and develop a relationship of trust makes these collateral interactions even more important.

Processes should be implemented and staff trained to document communications in the medical records, including emails and text messages, which should be incorporated into the file. Emails should not be allowed to auto-delete and disappear. To the extent that texts, emails, and notes relate to treatment and care, they are by definition part of the medical record, and must be maintained for a period of three years after the animal’s last visit.