Limit Your Liability

Even with training and supervision, anyone working with cattle faces some risk of injury, including veterinary interns or volunteers. ( Lori Hays )

In 2017, a veterinary student intern in Missouri received a $4.2 million judgment after being injured while working cattle in a chute. The court ruled the supervising veterinarian, who was not present at the time of the incident, was liable for 24% of the damages.

We might long for the less-litigious times of past generations, but these days we need to take steps to minimize our exposure to liability with prior planning and legal paperwork. We also should recognize that growing numbers of veterinary students, even with a large-animal focus, grew up in the suburbs and have little to no real experience in handling livestock, potentially raising the risk of injuries. 

The question is how to mitigate the overall impact (if possible) by reducing liability or shifting it or sharing it, so that the practice can survive for another day.

This article will focus on a limited subset of the lawsuit process, looking at pre-planning and the veterinarian’s options once a suit has been filed, cause of action stated and it is time to defend.

In this article, I intend to provide an overview and some options to consider. State laws vary however, and every situation is different. There is “the law” as a general body of precedent, and then there is your individual state law, which governs in all things. I strongly advise veterinarians to work with an attorney who understands their business and their state’s liability laws, in designing a plan to minimize risk. When in doubt, ask the lawyers.

Litigation Basics

We often say the first rule of liability law is “don’t sue if they don’t have money,” followed by “find a deep pocket,” meaning the defendant’s insurance provider. Another rule, somewhat tongue-in-cheek but also serious, is “sue everybody for everything, let the court sort it out.”

Cause of action for injury or negligence creates a tort case. (See sidebar for definitions of tort and other legal terms.)

Negligence action is described in the simplest form:

  1. Duty.
  2. Breach of Duty – what you did, or did not do, that causes damages.
  3. Damages have to be proven.

An affirmative defense to a civil lawsuit involves a fact or set of facts that, if proven by the defense, defeats or mitigates the legal consequences of the defendant's otherwise unlawful conduct. In other words, “Even if what you say is true, I have no liability.” This must, however, be proven by the defense.

Depending on your state or jurisdiction, courts assign negligence in one of three ways.

Contributory negligence – This is a theory that if the plaintiff is at fault at all, they cannot recover.  It is harsh and not very common these days.

Pure comparative negligence – The plaintiff can have some percentage of fault and still get a recovery, but is reduced by that negligence percent.

Modified or partial comparative negligence – If the plaintiff’s fault is above a particular bar, usually 51%, the defendant not obligated to pay.  This is common in many states where the cattle industry predominates.

The Fault Breakdown

  • Contributory Negligence as a bar –  Five jurisdictions – Al. Md., N.C. Va. D.C.
  • Pure Comparative Negligence – 13 states – Alaska, Ariz., Calif., Fla., Ky., La., Miss., Mo., N.M., N.Y., R.I., S.D., Wash.
  • Modified Comparative Negligence, 50% Bar – 11 states – Ark., Colo., Ga., Idaho, Kan., Maine, Neb., N.D., Tenn., Utah, W. Va.
  • 51% bar rule – 22 states – Conn., Del., Hawaii, Ill., Ind., Iowa, Mass., Mich., Minn., Mont., Nev., N.H., N.J., Okla., Ohio, Ore., Pa., S.C., Texas, Vt., Wis., Wyo.
  • S.D. gets honorable mention for the “slight/gross negligence” standard in that they have comparative negligence, but only if the plaintiff has “slight negligence” versus committed a gross negligence – more semantics than anything.

In the Missouri case mentioned earlier, involving pure comparative negligence, the court assigned 16% of fault to the plaintiff, 24% to the veterinarian, who was absent when injury occurred, and 60% to the ranch, who owned the chute and had employees present.

Exculpatory Clause

Some veterinarians require interns to agree to an exculpatory clause, such as: “I release you from any liability for damage and injury to myself or to any person or property resulting from this activity and accept full responsibility for such damage or injury.”

This is not favored, meaning a judge will knock it down if at all possible. Validity is determined by the following standard:

  • Must not contravene any policy of the law.
  • Must be a contract between individuals relating to their private affairs.
  • Both parties must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction. 
  • Agreement must be construed strictly and against the party asserting it and must spell out the intent of the parties with the utmost particularity.

Exculpatory clauses are not enforceable if:

  • Ambiguous (fails to state which rights are being waived) or difficult to see in the overall agreement (make it a separate agreement).
  • Deliberate acts or gross negligence cannot be exculpated (public policy).
  • Fraudulently obtained – falsifying a material fact to deceive another and reliance on that fact by the other.
  • Contrary to public interest/public policy (see 2) or there is a disparity in bargaining power – required to sign to get services such as utilities, hospitals, etc.  A test is whether the individual can get the service elsewhere, and if so, it is less an over-reach of power or position.
  • Complete absolution of liability is usually unenforceable, with considerable variation between states and federal circuit courts.

Indemnification

Indemnification could be useful in case of allowing externships, with the University as the other party. This has to be a contractual, arms-length negotiation. It is a contractual obligation by one party to pay or compensate for the losses or damages or liabilities incurred by another party to the contract (or by some third person). Following is an example of wording for an indemnification agreement:  “To the fullest extent of the law, University shall indemnify, defend and hold harmless Vet, its officers, employees, agents, representatives, consultants, and contractors from and against any and all loss, costs, penalties, fines, damages, claims, expenses (including attorney’s fees) or liabilities …arising out of, resulting from, or in connection with the services contemplated by this Agreement”

Assumption of Risk

In this type of agreement, the person voluntarily and knowingly assumed the risks inherent to the dangerous activity. In court, the defendant must demonstrate that the plaintiff knew of all risks, or at least the one that occurred, at the time of the injury.

This should to be an express written agreement stating the risk and its assumption, usually coupled with a waiver to not sue. You have the option of using examples specific to the work involved. Implied or oral statements also have relevance, particularly if you inform or warn the person about risky conduct but the person continues with conduct, exposing themselves to risk. This can depend on state livestock liability statutes.

Releases, Waiver, and Other Agreements

Businesses sometimes use a release of liability and waiver of the right to sue if any loss results from participation in the activity. Here are some examples:

Release of Liability Clause: “In consideration for being allowed to participate in this Activity, I release from liability and waive my right to sue The Vet, their employees, officers, volunteers and agents (collectively “Vet”) from any and all claims, including claims of the Vet’s, resulting in any physical injury, illness (including death) or economic loss I may suffer or which may result from my participation in this Activity, travel to and from the Activity (including air travel), or any events incidental to this Activity”.

In an express assumption of risk, the participant acknowledges understanding the nature of the activity and the risks involved, and chooses voluntarily to accept those risks. Here is an example: Expressed

Assumption of Risk Clause: “I am voluntarily participating in this Activity. I understand that there are risks associated with my participation in this Activity, such as physical and/or psychological injury, pain, suffering, illness, disfigurement, temporary or permanent disability, death or economic loss. These injuries or outcomes may arise from my own or other’s actions, inactions, or negligence, or the condition of the Activity location(s) or facility(ies). Nonetheless, I assume all risks of my participation in this Activity, whether known or unknown to me, including travel to and from the Activity (including air travel) or any events incidental to this Activity.”

In a “hold-harmless” agreement the participant agrees not to hold the veterinarian responsible for any loss that may result from participation in the activity.

Hold Harmless Clause: “I agree to hold the Vet harmless from any and all claims, loss or damage to my personal property, liabilities and costs, including attorney’s fees, as a result of my participation in this Activity, including travel to and from the Activity (including air travel) or any events incidental to this Activity. If the Vet incurs any of these types of expenses, I agree to reimburse the District.”

In an indemnification where the participant agrees to pay the veterinarian for any losses it may suffer as a result of the participant’s participation in the activity. Options include a medical consent in which the participant agrees to be responsible for his/her own medical expenses that may result.

These agreements should include an understanding and acknowledgement statement such as:  “I have read this document, and I am signing it freely. I understand the legal consequences of signing this document, including (a) releasing the Vet from all liability, (b) waiving my right to sue the Vet, (c) and assuming all risks of participating in this Activity, including travel to and from the Activity (including air travel) or any events incidental to this Activity. “

Download a printable PDF of Dr. Brown’s preferred waiver form.

Manage Your Risk

Veterinarians can take several steps to minimize their risk of liability and avoid problems. These include:

  • No volunteers
  • Create an LLC entity. This is a good plan regardless, as most of us are mobile. If structured properly, this can reduce individual liability depending on state laws.
  • Make an extern an employee, so worker’s compensation will cover the problem for you as different rules apply. (Check with your lawyer.)
  • Have the university indemnify you when take their externs. This passes liability back to where it started, but the universities usually have limits on liability.
  • Have the university pre-screen and “vouch” for basic knowledge and skills. This can allow you to involve the university as a 3rd party in case of litigation.
  • Do your paperwork – waivers, releases, assumption of risk.
  • File a separate sheet, signed and initialed, with some specific risks such as sudden and unpredictable movement, equipment failures, contracting diseases, all of which can result in injury or death.
  • Have student assert they have a certain skill and training level.
  • Enlist the corporate client if applicable. They often have releases and a legal department.

Reminders

  • Do not just rely on a form, get state-specific information from a lawyer. Each state is different.
  • University legal department might have a form you can use; ask them or ask the CVM if have a form they use.
  • As a general rule, safety first and common sense applies.
  • If it “feels” like something may be an issue, it is, and you are already on notice about it.  Try to avoid allowing activity that seems risky to a novice or untrained person as you are the supervisor and the final word.

Returning to that Missouri case, there were several factors that resulted in the student’s $4.2 million award.

  • It was a seven-day jury trial, and Missouri is a comparative negligence state.
  • The damages were proven to the  jury.
  • The court allocated fault at 16% for the plaintiff, 24% for the veterinarian, who was absent when injury occurred, and 60% for the ranch.
  • The jury found negligent supervision by veterinarian.
  • They also found Improper use of equipment by ranch, with two animals in chute, no head catch used and no squeeze chute used. Improper restraint was the main claim.
  • The veterinarian admitted being the supervisor and not present, so failed to supervise, resulting in 24% liability.
  • Common incorrect use of chute was not a defense.
  • Affirmative Defense of implied assumption of risk failed.
  • The jury determined the student needed a grade so was at a disparate bargaining position and had to do what was told.

Sidebar

Legal Terminology Related to Liability

Tort – French word ... means “wrong” ... figure it also means “expensive”.  It is French, after all.

Liability – basis for recovery; negligence standard is our focus for the moment, but there are some variations (negligent supervision, employer liability, gross negligence).

Duty owed – how a reasonable prudent person (practitioner, vet) acts or does not act in similar circumstances.

Breach – the duty owed was broken in some fashion.

Proximate cause - the Injury/damages resulted from breach of the duty. Proximate cause itself can get fuzzy (remote, intervening), but let’s assume you failed to do something and it caused the injury

Last clear chance – the last person, or action, that would or could have avoided the injury. For us, it often means “stop that” was not said and something bad happened.

Liable – a conclusion, you get to pay.

Waiver – a knowing release of liability.

Assumption of risk – The person knew the risk, appreciated the risk and assumed it. These can be implied rather than stated, such as in skydiving, running of the bull or taunting the local guard dog.

Both of these go to affirmative defenses.

Indemnification – someone else has agreed to protect you or reimburse you for expenses or damages for negligence.

Exculpatory clause – This is found in many waivers and states “you agree to not sue me, even if I am negligent.

 

Dr. Kenneth Brown is a veterinarian and attorney who operates Rural Veterinary Services, LLC, Bell, Florida. Reach him at RuralVet9@gmail.com.

 

 

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