TOPEKA, KAN. — It was designed to protect veterinary/client confidentiality, but pushback from the state veterinary board may table a
state bill's chances to move forward this year.
In fact, the Kansas Veterinary Medical Association (KVMA) and the Kansas Board of Veterinary Examiners haven't been able to
work out the details in the legislation's language, reports veterinary legal expert Gregory Dennis, JD, who is working with
the KVMA on the bill.
As it stands, SB 148 was crafted to make veterinarian-client confidentiality a privilege—an important legal concept that
protects communication between a doctor and client.
But Steven J. Anderson, director of the Budget for the state of Kansas, explains the issue this way in a memorandum to Mark
Taddiken, chair of the Senate Committee on Agriculture, "The Kansas Board of Veterinary Examiners indicates that enactment
of SB 148 would result in the agency having to get a court-ordered subpoena in order to obtain veterinary medical records
for its investigations."
A draft of the bill states, "a licensed veterinarian shall not disclose any information concerning the veterinarian's care
of an animal except on written authorization or other waiver by the veterinarian's client or on appropriate court order or
an appropriate subpoena. Any veterinarian who releases information under written authorization or other waiver by the client
or under an appropriate court order or appropriate subpoena shall not be liable to the client or any other person."
What brought about this legislation was, in part, related to a lawsuit pending in the U.S. District Court for Arizona—Martinelli
versus Petland Inc. In that lawsuit, the plaintiff and the Humane Society of the United States challenged subpoenas on veterinary
medical records in Kansas District Court and in the Missouri Federal District Court.
The Federal District Court in Kansas ruled that under mere issuance of subpoena was enough to negate privilege. The KVMA opposed
the ruling. At that time, AVMA filed a friend of the courts brief also disagreeing. Unfortunately, Dennis says that under
the U.S. Federal District Court, the decision stood.
When it comes to the legislation, the Kansas Board of Veterinary Medical Examiners pushed back on the wording of "appropriate
court-ordered subpoena," believing it would make it harder to obtain veterinary records. But KVMA disagreed with that assessment.
The Kansas statute on the books, as it currently exists, has a phrase within it to make it "explicitly clear" what the Kansas
legislature of 1991 meant when it used the phrase "appropriate court order or subpoena" in one of five exceptions not as the
court interpreted it.
"We clarified language ... if there was a dispute or conflict between board's authority and any privileges, the board prevailed
and the board gets the records. We don't want bad veterinarians out there," Dennis says.
Currently, without the legislation, unless veterinarians in Kansas and Missouri fall within five limited exceptions, all records
are confidential. The exceptions include: reporting cruel/inhumane treatment; information needed for emergency care; disclosure
of vaccinations for the public health and welfare; where the veterinarian's client or the animal owner places the veterinarian's
treatment or nature and extent of the animal's injuries at issue; or in relation to any board investigation or disciplinary.
The Kansas Client Privilege statute is based on similar statutes in place in Georgia and Missouri. Other states with similar
laws include Illinois, Nebraska, Texas and Kentucky.