July 18, 2011
N.J. bill stalls as legal battle concerning dog's death wages
NJVMA weighs in on legislation
By: David DeKok
For The VIN News Service
When a 16-month-old rottweiler named Betsy developed a painful eye condition called entropion in 2007, owner Madeleine Kayser took the dog to Dr. James M. Clinton for surgery at Animal Eye Clinic/South Jersey Animal Hospital in Medford, N.J.
Betsy died that night, not from the surgery but because the cone collar intended to keep her from pawing her stitches became caught in her cage, and she hanged. No one was at the hospital that night, so there was no chance to save her life.
Four years later, Kayser is pushing the New Jersey Legislature to pass Betsy’s Law, which requires veterinarians to notify pet owners if there won’t be 24-hour supervision of the pets in their care.
The bill, introduced last year, sits in committee in the Assembly and Senate, which is bogged down by pressing state business. Leaders with the New Jersey Veterinary Medicine Association (NJVMA) met with lawmakers last week in an attempt to soften the bill's "draconian" language.
Meanwhile, a court battle between Kayser and Clinton is waging, with the crux of the fight now centered on privacy stipulations in the case.
Kayser is trying to extricate herself from a malpractice lawsuit she filed against Clinton following Betsy’s death. But in an unusual legal twist, Clinton and Joseph A. Breymaier, his Philadelphia-based attorney, are trying to force Kayser to accept a tentative settlement reached last fall rather than dropping the case.
The settlement, according to Kayser and various court documents, would have given her $5,000 in damages but required her to sign a strict confidentiality agreement.
Negotiations regarding the agreement's scope and whether it would allow her to lobby the state Legislature in favor of the Betsy’s Law bill dragged on until this past spring. At that point, she told her lawyer, Linda M. Sinuk, an animal rights attorney from New Brunswick, N.J., to abandon the case.
“I don’t want to settle. I’m done,” Kayser told the VIN News Service. Speaking as though she were addressing the defendants, Kayser exhibited frustration: “You can’t figure it out after seven months, I’m done. I can’t be bothered. I don’t want your lousy five grand. That’s what we settled for. See, it was never about money. It was about holding the doctor accountable for what he did.”
Asked to respond, Clinton stated to the VIN News Service that he's bound by a judge-imposed gag order, though court records do not verify that such a restriction is in place.
Sen. Andrew R. Ciesla, a Democrat who represents New Jersey's Monmouth and Ocean counties, is the prime sponsor of Betsy’s Law. A spokeswoman for his office, Cate Cocozza, said the Senate might not take up the measure until fall.
Some are hoping the bill goes away. Rick Alampi, executive director of the NJVMA, points out that state regulators of veterinary medicine already require practitioners to notify whether they offer on-site 24-hour care. But if there is going to be a law, he would like some of the language clarified or changed.
Alampi and NJVMA government relations consultant Nicole Cole recently met with Ciesla to discuss compromise language. It is not yet clear whether the bill will be altered to reflect any of the NJVMA's proposed changes.
Specifically, the NJVMA has deemed “unacceptable” current language in the bill specifying the wording of a release pet owners would be asked to sign to acknowledge they understand that 24-hour supervision by a person on the premises is not offered by a practice. As outlined in the bill, the proposed release reads: “This facility does NOT provide 24-hour supervision for any boarded animals. Your signature on this document confirms that you have been notified of the lack of 24-hour animal supervision at this facility, and further signifies your understanding that, in the event that you choose to leave your pet at this facility, your pet may be subjected to injury, illness, or accidental death due to the absence of 24-hour animal supervision.”
Those words appear to have been come straight from Kayser, based on her “Help Pass Betsy’s Law” Facebook page. In all caps, she writes, “BELOVED PET OWNERS HAVE A RIGHT TO KNOW!”
By contrast, NJVMA is pushing to whittle the bill's proposed release down to this statement: “This facility does “NOT provide 24-hour supervision for any boarded animals.”
Alampi also is asking that other language be clarified to emphasize the difference between a “boarding facility,” where pet owners board healthy pets while on vacation, for example, and a “veterinary facility,” where pets are treated by veterinarians and sometimes stay overnight, as Betsy did. At present, the bill uses the phrase “veterinary boarding facility,” which NJVMA considers to be unclear, appearing to merge the two facility functions.
Dr. Robert P. Gordon at Oakland Animal Hospital in Oakland, N.J., said his practice has for years advised pet owners that 24-hour care is not routinely offered. Owners who are concerned about their ill pets being unattended overnight can opt for private duty nursing that costs about $250 a night, or they can transfer their pet to an emergency clinic with regular, round-the-clock staffing.
Clinton's attorney, in comments he made last month to the Newark Star-Ledger newspaper, said that even if Betsy’s Law had been in effect in 2007, it wouldn’t have mattered because Kayser “had signed the consent notice.” In other words, she had legally acknowledged knowing there was no 24-hour care at South Jersey Animal Hospital when she signed a general anesthesia release form.
Kayser strongly disputes that, stating on her Facebook page that she did not see her signature affirming the language about no supervision until she gave her deposition to Breymaier, Clinton's attorney, in October 2009. She also contends that she told the practice that Betsy needed overnight supervision and was told by a practice employee that it would be provided.
When Kayser arrived at the hospital after receiving a phone call from Clinton that Betsy was dead, she said things went downhill. She was traumatized by the news of her pet’s death.
“I was crying, in hysterics,” Kayser said.
Clinton did not respond to VIN News Service requests to present his side of the story. His silence might stem from the fact that after Betsy's death, Kayser tacked posters of the veterinarian's image to telephone poles suggesting that he is incompetent to practice medicine.
Breymaier, in a May 23 petition to the court to enforce the settlement and sanction the plaintiffs, contended that Kayser could not simply walk away from a settlement that had been orally agreed to but not signed.
Sinuk, in a June 1 motion to the court, countered that her client is the injured party.
“Defendant (Clinton) should not be permitted to use the Court as an arena for his personal animosity towards Plaintiffs,” she wrote. “Plaintiffs (Kayser and her husband) suffered the loss in this case, though Defendant continues to disparage them and misrepresent their actions to the Court.”
So far, Judge John E. Harrington, who is hearing the case in Burlington County Superior Court in Mt. Holly, N.J., has not ordered Kayser to accept the settlement. A final ruling is pending.
The New Jersey Board of Veterinary Medical Examiners also is considering a complaint filed by Kayser against Clinton concerning the dog's death. Clinton already has a citation history. Regulators came down on him following an inspection in 2001 for maintaining his practice in a "dirty or unsanitary condition." He also was cited for maintaining and storing more than 1,600 misbranded and expired medications and keeping controlled substances in unlocked cabinets. Clinton was ordered to pay a $5,000 civil penalty, of which $4,000 was stayed, and costs of $3,066.
Immediately following Betsy's death, Kayser recalls that she questioned why she should pay the veterinarian for his work, to which, he responded that it was up to her.
Clinton declined to discuss his recollection of the events as they occurred following Betsy's death with the VIN News Service, or whether Kayser's story has merit. But the type of scenario relayed by Kayser is what veterinarian-turned-lawyer Dr. Charlotte A. Lacroix warns about in her article, “Malpractice Risks ... Where Are They?" She is affiliated with Veterinary Business Advisors, Inc., in Whitehouse, N.J.
Lacroix has no first-hand knowledge of the case involving Clinton. In general, she advises veterinarians hoping to avoid malpractice suits to "show sympathy and concern."
Gordon, like most veterinarians, has dealt with grieving pet owners who don’t want to pay the bill because their animal died. “It brings out all the emotions,” he said. “After 30-some years of practice, I still haven’t come up with the best way to handle that.”
As for the proposed Betsy’s Law, Lacroix has mixed feelings. She says most veterinary hospitals don’t offer 24-hour care unless they are emergency practices, and pet owners have a right to know this. But she fears that laws like this will contribute to veterinarians practicing defensive medicine, which ultimately will raise costs for clients.
“We’re becoming such a paternalistic society,” she said. “It’s frightening.”
VIN News Service commentaries are opinion pieces presenting insights, personal experiences and/or perspectives on topical issues by members of the veterinary community. To submit a commentary for consideration, email firstname.lastname@example.org.
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