Robert Newman

Photo courtesy of Robert Newman

A lawyer whose expertise includes veterinary malpractice litigation, Robert Newman believes that apologies can stave off lawsuits. He is pictured with one of his pharaoh hounds, Elliott.

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It was 3 a.m. on a Friday in 2019 when Dr. Meghan Ellis, weary and near the end of an 18-hour emergency shift, surgically removed a ball of grass and other ingested material caught in the stomach of a young golden retriever.

The gastrotomy went unremarkably, Ellis recalled, not unlike the hundreds she'd performed in the past: Make a hole, get the stuff out, sew it back up, done. The pup was discharged later that day, eating and doing well. By Sunday, however, the dog was suffering, so sick that his regular veterinarian euthanized him.

A necropsy revealed what no surgeon wants to hear. Ellis had sutured too deeply, sewing a part of the intestinal tract to the abdominal closure. The dog's veterinarian called Ellis at her home in Sanford, North Carolina. "She said the jejunum was sutured to the linea, there was septic peritonitis, and it was really bad — horrible inside," Ellis recalled. "There were pictures. I knew I had screwed up, big-time."

Taking it in, Ellis notified her practice. Then she called the dog's owner, disclosing what many practitioners are loath to, for fear of legal implications, as well as personal and professional repercussions. "I told him, 'I'm sorry. Your dog wouldn't be dead if I hadn't done this' and that I would be reimbursing him the cost of the surgery out of my own pocket," Ellis recounted.

The dog's owner was stunned and sad but gracious. "He was polite and thanked me for being honest," Ellis said, noting that he did not report the incident or write a negative online review.

"Calling him," she said, "was the right thing to do."

That tough conversation was the last Ellis heard from the owner. By acknowledging the error, Ellis may have quelled the owner's anger and fostered trust and presumably, forgiveness. "Mistakes happen," she said. "It's better to admit them and learn and grow from them. People deserve honesty."

It's a point of debate whether an apology diminishes or increases the risk of litigation and challenge of a veterinarian's license. Using apologies as a tool for conflict resolution and mediation for medical errors is tricky. In fact, silence is the most common method of ensuring that a health care provider's defense in a case is not jeopardized by statements that might be construed as an admission of error or evidence of culpability. Dr. David Carser, a veterinarian and legal expert with Veterinary Defense Association, a nonprofit that assists practitioners who face legal or regulatory complaints, said he discourages such gestures because they can do harm.

But "never stonewall, either," he said. "Owners don't want empty apologies; they want honest, properly considered explanations." 

Veterinarians are liable only when their professional conduct does not meet minimum standards of care, and Carser acknowledges that negative outcomes rarely rise to that threshold. "Very often, what appears to be a careless mistake to the practitioner is nothing more than a recognized risk of the procedure," he said. "Not every error amounts to malpractice." 

When faced with a negative outcome, he advises practitioners to evaluate the case and then provide the owner with that properly considered response — one that, if warranted, could include compensation. "If the veterinarian did not meet the minimum required standards of care, it is far cheaper, better and more honest to make a small protected settlement upfront to the owner," Carser said. "The alternative is to risk having to pay a wildly inflated claim once the lawyers have had their feast." 

Physicians get legal shield

Across much of the United States, physicians are protected by apology laws, which make statements of apology inadmissible as self-incriminating evidence in malpractice cases. While such laws do not cover U.S. veterinarians, their counterparts in some parts of Canada are similarly protected. 

The Apology Act, enacted in 2006 in British Columbia, allows any person, veterinarians included, to say "I'm sorry" without fear of legal or regulatory repercussion. The act defines an apology as an expression of sympathy or regret, or words and actions indicating contrition or commiseration. 

That type of acknowledgment can make the subject of a medical error less likely to pursue damage claims, research suggests.

Dr. Lydia Love, a clinical assistant professor of anesthesiology at North Carolina State University College of Veterinary Medicine, is collecting accounts like Ellis' for a lecture to second-year students on how to address medical errors.

On a message board of the Veterinary Information Network, an online community for the profession and parent of the VIN News Service, Love postulated that practitioners are reluctant to disclose and apologize for medical errors for fear of litigation, and asked whether apology laws protecting physicians might be reasonably applied to veterinarians.

"The human medical literature very clearly indicates that patients and families want honest, transparent communication about errors — what happened, what can be done, why it happened and how it can be prevented going forward," she wrote. "Apology — and not just apology of sympathy but apology of responsibility combined with financial restitution when appropriate — has been shown to decrease malpractice suits. 

"To my knowledge, this has not yet been reported for veterinary owners, but I have to imagine that the perspective is similar," she concluded.

Some in the insurance industry, however, advocate silence to ensure that a veterinarian's defense isn't jeopardized by statements that might be construed as an admission of error or culpability — a tactic known as "delay, deny and defend."

One of the nation's largest insurers of veterinarians is the Professional Liability and Insurance Trust, or PLIT, which covers thousands of practitioners as an indemnity arm of the American Veterinary Medical Association. Asked by VIN News for its stance on apologies, PLIT officials said in an emailed statement that when disclosing an error, "it helps to show empathy and to say you are sorry this happened."

But, they advised, "don't do anything before contacting an insurer for input.

"It is often our first impulse to apologize when things go wrong, even when those things are beyond control," the statement reads. "It's important that veterinarians speak with AVMA PLIT or their professional liability carrier as soon as possible to get guidance on how to communicate with the client when things haven't happened as desired."

They warned: "In most states apologies may be used as evidence in lawsuits against veterinarians to establish liability."

'I'm sorry' repairs relationships

But it's unlikely, apology proponents contend, and there are few, if any, examples of that happening to veterinarians.

Robert Newman, an attorney in California known widely as a pioneer in veterinary malpractice litigation, says his experience in the field began in 1999 through a cryptorchidism neuter gone wrong involving his $23 shelter dog, a Chihuahua named Ruben.

The surgery required fishing Ruben's undescended testicle from his abdomen before removing it.

The operation deemed successful, the dog was discharged. But two days post-op, the surgery site showed signs of infection, and the abdominal incision opened. It was the weekend, so Newman rushed Ruben to an emergency hospital, where the incision was flushed, sutured and treated with antibiotics.

That Monday, Newman recapped the situation for his veterinarian.

"He could have said, 'Sorry that happened' … but he was the opposite of 'I'm sorry,' " Newman recounted. "The incision was literally oozing green pus, and he said, 'I'm not sure it's infected.' It was a disaster."

When Newman asked to be reimbursed for the emergency visit, the veterinarian balked and the disagreement escalated. "I told him, 'It's going to cost you a hell of a lot more than that.' "

And it did. Newman took the veterinarian to small claims court, where he learned two things, he said: The veterinarian had handed off the surgery to an associate and gouged him on the price. 

"The thing that pissed me off was, I specifically hired this vet to do it, and he let a new associate vet do it," Newman said, adding that the doctor also charged much more for the procedure than specified by his contract with the shelter.

Newman won the case, which culminated in a $2,000 payout.

"There is just no substitute for being upfront and honest," he said. "Sometimes, that involves an apology, and that's pretty much all I wanted."

Are apology laws unnecessary?

Veterinarians don't need statutes to protect them from litigation when apologizing for a case that's gone awry, Newman believes.

He and others in the legal realm, including University of Florida professor and apology law expert Jonathan Cohen, consider apologies to be akin to subsequent remedial measures — repairs or changes made after an error or accident has occurred that could have prevented it. 

Public policy doctrines for the exclusion of subsequent remedial measures in lawsuits are affirmed by the U.S. Court of Appeals for the Fifth Circuit in Rutledge v. Harley-Davidson Motor Co. 

The 2010 ruling involved Harley-Davidson's recall of motorcycles with a forked front wheel design, following incidents of cracking that resulted in injuries and deaths. "The way I understand it, because the company fixed the defect, at trial, the attorney of an injured party tried to characterize it as an admission of guilt by Harley-Davidson," Newman said. "Judges rejected that because the redesign was part of subsequent remedial measures designed to fix the problem, and dismissed the case because the recall was inadmissible."

The appeals court upheld the dismissal.

"We all want manufacturers of defective products to fix them when they learn about it," Newman said. "The court reasons that if we punish them by allowing the fact that they fixed the problem to come into evidence, it would have a chilling effect."

He argues that the same is true in veterinary practice — that apologizing is not tantamount to admitting wrongdoing. "I don't think anyone should say 'I'm sorry, I screwed up.' That's too much of an admission," he said. "But 'I'm sorry, we didn't think this would go this way,' is a fairly innocuous statement. You can't read liability into that statement."

Aggrieved owners often just want empathy and transparency. "I've heard so many cases where the vet won't even talk to the client, so the client has no idea why the animal died," Newman said. "Why not just say, 'Sue me'? ''

Asked whether he's spoken with PLIT and other providers of malpractice insurance about their guidance to veterinarians on apologies, Newman responded: "God, no, they don't talk to me. They just go to my lectures and take notes."