Failure to check credentials
While there is no obligation in the law to spot and avoid every fraud perpetrated by another person, there is a requirement
to take reasonable care to prevent dangerous errors in this situation. Dr. Bill neglected to do any sort of background check
on Don when he was hired. A simple Internet search or phone call to the state licensing authority would have turned up the
fake LVT credentials.
The failure of Dr. Bill to identify Don's lack of an LVT license as well as (and more importantly) the fraud carried out by
a person who eventually was to be trusted with controlled substances make a great case for actionable negligence. Don't just
assume licensed individuals are set to work when they are hired; trust but verify.
There are technicians applying for jobs whose licenses have been revoked. There are veterinarians available for hire who haven't
actually taken the boards in the state where they are applying. I know there are docs running around who've let their state
licenses lapse and are therefore unqualified to practice. I know because years ago I had one working for me. I have since
Ignoring employees' drug-abuse warnings
In the fact pattern there are only a couple of innocent parties—and one is Amy. When she reported her concerns regarding the
disappearance of drugs to her employer, Bill was duty-bound to carry out at least some type of investigation. If an investigation
had turned up a problem, the subsequent allegation of negligence would be far weaker.
If an investigation had turned up no proof because of Don's refusal to admit that he never really counted the pills, the allegation
that "reasonable" control had not been exercised would still be weak. The law doesn't require omniscience, only reasonableness.
Dr. Bill is not expected to be able to see through lies without some tangible evidence that lies were told.
Controlled drug back-up system
It is best to have a licensed veterinary technician be responsible for controlled drug inventory but not essential. In any
event, it is an excellent strategy for the DEA license-holder to either switch medicine-counters periodically, or have a second
person periodically monitor the inventory-taking process. In our example, Dr. Bill could have identified the problem of missing
drug supplies by simply having Amy re-check Don's work every so often.
In the meantime, has anyone been wondering what effect Dr. Carl's wife's immigration status would have had on the pending
personal-injury verdict? Once the DEA arrived on the premises of Blackacre Veterinary P.C. to investigate the disappearance
of the controlled drugs, an investigation of both veterinarians, Bill and Carl ensued. They wanted to know whether Carl just
liked to use the meds or perhaps had developed a retail outlet.
When the agents checked out Carl's associations, they were especially interested in his widow's foreign accent. Mrs. Carl's
illegal status was uncovered immediately and reported to Homeland Security. The estate's ability to defend the personal injury
action was dramatically impeded after Mrs. Carl (the executrix named in Carl's will) was deported to Panama. After that, the
battle to replace her as executrix and the legal fees to defend the lawsuit ate up all the money in legal fees. The end.
In a few months in this column, I will address another related workplace problem: Use and suspected use of drugs in the workplace
itself. The legal issues are myriad, including workers' compensation complications, malpractice and vicarious malpractice
allegations, and potentially discriminatory drug-testing policies.
Dr. Allen is president of the Associates in Veterinary Law P.C., which provides legal and consulting services to veterinarians. Call
(607) 754-1510 or email email@example.com
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