Speaker 1: You are listening to Your Practice Made Perfect. Support, protection and advice for practicing medical professionals, brought to you by SVMIC.


J. Baugh: Hello, everyone and welcome to this episode of Your Practice Made Perfect. My name is J. Baugh. I'm one of the claims attorneys here at SVMIC and I'll be your podcast host today. Whenever we do a podcast, we try to come up with something that is very informational and very interesting, and I think we definitely have that today, because today we're going to be talking about service animals in the clinical setting. And helping us to discuss this issue today is defense attorney Wendy Longmire. Wendy, welcome.


Wendy: Thank you so much, J. I'm glad to be here. Thanks for asking.


J. Baugh: Absolutely. We're glad to have you here. Before we get started on this idea of service animals in the clinical setting, give us a little idea of your background and your relationship with SVMIC.


Wendy: Okay. Well, I am at the Ortale Kelley law firm and I have been there since 1987. So I'm an old lawyer, and I really have been there all my litigation life, with the exception of one year where I clerked for Walter Kurt to the Fifth Circuit Court. So I do all types of litigation, all from a defense standpoint, and primarily healthcare liability. As a result I have had the pleasure of working with SVMIC for many years.


J. Baugh: Well, we're glad to have you here today. And we're really looking forward to this topic, because it's a topic that's becoming more and more of an issue that different healthcare providers are needing to deal with. And that is the issue of service animals in the clinical setting. So let's start by talking about the different terms that are used; such as service animal, emotional support animal, comfort animal, therapy animal. What are the differences in those terms?


Wendy: Well, I think basically a good way to sort of separate these out - are - the service animal is a distinct classification of a working animal, not a pet. And they are covered under the Americans with Disabilities Act. And these emotional support animals and companion animals - these are cropping up more and more - and you're seeing those certainly on airplanes and the like. They're able to travel with people on airplanes.


J. Baugh: Right.


Wendy: They don't reach the same protection that the service animal and the person with the service animal does under the law. But clearly a service animal is a dog, and in some cases really a miniature horse, who is individually trying to do work or perform tasks for people with disabilities.


J. Baugh: Okay. So you mentioned earlier about the law that relates to this issue. What is the body of law that governs service animals and emotional support animals?


Wendy: Mostly this is federal law, and that is the ADA, the Americans with Disabilities Act. As well as The Rehabilitation Act, which comes into play if Medicare is involved in reimbursement for the healthcare being provided, which very often is the case. So that is what these plaintiff councils are looking to, for that law, to enforce it if in fact it has been violated. It's an issue I'm certainly seeing more and more of, and I've been practicing now about 33 years, and in the past three to five years we were seeing lots more of these issues on the rise in the healthcare setting as well as other settings.


J. Baugh: Yeah, we hear about service animals and emotional support animals a lot in the media when there's maybe an unusual type of animal that's being used in a particular setting. That makes for good news for people to report about and to listen to. So it's something that we're becoming more and more aware of in general terms, but how does this really affect healthcare practitioners? How does it affect people in the healthcare field? We hear about it when it comes to flying an airplane, as you mentioned earlier, but does it really come up in healthcare settings?


Wendy: You know, It does, and I think it's because the world in which we live people are feeling more confident about wanting to have this type of reinforcement with them, and therefore they're confident enough to bring that service animal with them to the doctor's office, or request that it come with them to the doctor's office, and there have been occasions where they're requesting that animal be there to provide support for them during a procedure. Now, you can imagine there are certain circumstances that we could just think of where that might be pretty easy to accommodate and others where it might not be so easy to accommodate.


J. Baugh: Right.


Wendy: For example, if a brand new patient arrives at the clinician's office to check in for that first appointment and there has been no communication prior to this, other than the scheduling of the appointment, this is where I've actually seen this crop up and the individual has arrived with an animal with them. The office is unprepared on how to deal with that and I hope that we can, through this podcast, give some tips on how you might deal with that.


J. Baugh: So that provides a good scenario for us to consider. Let's say I'm a physician, I have my own practice, my own clinic, and a new patient schedules an appointment and I have no idea that this patient is going to bring an animal with them. Am I required by the law to accommodate any patient who presents to my clinic with an animal?


Wendy: The answer to that is technically no, but you are now presented with a situation that you must deal with, and you must be careful on how you deal with that. Some questions that might be asked, for example, are going to be in direct violation of the law. You cannot ask “What is the person's disability?” You cannot ask for medical documentation or an identification card or training documents for well, say the dog. And you cannot ask the dog to demonstrate or perform its ability to perform the service that it was trained to do. 


Now, those are the nos. What can you ask? And this is all education for your staff and for your office. You can ask, “Is the dog a service animal and is it required because of a disability?” Without asking what that disability is. And you can ask, “What work or task has the dog been trained to perform?” There are some exceptions to that. You cannot ask those questions when the disability is readily apparent. For example, a seeing eye dog with a patient, there is no need to go further in the questioning with that.


J. Baugh: So, if there are certain questions that a patient can be asked and certain questions that a patient cannot be asked, what is the best way for me as the physician who has the clinic to prepare my staff for these types of encounters, and if they mishandle a situation, is that really a big deal as long as they just apologize for what they said?


Wendy: I think education, as with everything, and communication is key. So just listening to this podcast and realizing that this could potentially be a problem. While it might be rare, when it does occur, it can turn into litigation and I have had, personally, cases that I have defended healthcare providers who were not prepared for this situation. It arose and the manner in which it was handled led to litigation. 


So, being prepared for it. I have thought before that when you have a new patient, oftentimes she received something in the mail that is informational that you fill out before you ever get to the clinician's office. Possibly, a question could be included on that questionnaire. “Will you be arriving with the service animal?” That would certainly prepare the office for that.


That's a perfect setting. Of course, there are going to be many times when the patient hasn't filled that out and arrives cold for that first encounter. So telling your staff, here's what you do when that occurs, you certainly don't want to be in a situation where the staff member is saying, "We cannot handle this. You cannot bring your dog here and you cannot be seen” or “This is a sterile setting." When in fact it may not be. "And therefore we cannot allow your service animal to accompany you." Better safe than sorry. If in fact they don't know how to handle it, perhaps they need to just ask the patient and the animal to wait in the waiting room while they go and speak to a superior to have a measured careful response. There was a second part to that question.


J. Baugh: Yes.


Wendy: Is it really a big deal if your staff makes an error? It can be. Think of the scenario where they are surprised because there is a large animal that is there with a patient, and the animal is not wearing any identifying information. And as an aside that's not required. It's not necessary, and there are many people that violate the service animal badges and vests that animals wear. Those can easily be purchased on the internet. So that in and of itself is not your threshold. But the staff member is surprised, and asks either the patient to leave, or has a conversation that is overheard by others, or questions inappropriately this would be patient.


Then that's a situation where you have now set yourself up for litigation and violation of the Americans with Disabilities Act. And, if there is emotional distress that has been suffered, embarrassment, humiliation, that is recoverable in some cases. If there have been gross misconduct, attorney’s fees can also be recovered. And I will tell you as with anything, I'm sure everybody when they think of attorney's fees, those can mount up in litigation, especially federal litigation, and they can literally become the tail that wagged the dog. Not to use a bad pun, but suddenly you're faced with a situation where there may not be medical treatment for what's occurred by refusing to see this individual that they are seeking to be compensated for, but there are attorney's fees. And you are facing those attorney's fees.


I'll also say this as a very real fact to consider, that there is often press coverage. I think there's a sincere desire on behalf of the community, who deal with the Americans with Disabilities Act, and have service animals to educate the public. And I do think they use media to help educate the public in that regard. And when there has been a violation, I very often see that the press is notified and there is coverage about a particular clinician's office that they refused to see a patient, and that there is going to be litigation involving the violation of the ADA. And regardless of your best intentions, that coverage is always negative.


J. Baugh: Yeah. So it sounds like that if I have not properly trained my staff in ways to interact with a patient who brings an animal into the clinical setting, that it really is a big deal. It's not just I need to issue an apology or I just need to say that I'm sorry, but there could be litigation that arises from that. There could be damages that arise from that, and so that's really the reason that we're talking about this today, is to let everyone know that it isn't just simply, I need to say I'm sorry, but there are a lot of issues that could arise if the staff is not properly trained in how to interact with a patient who brings in an animal.


Wendy: That's right and I think sometimes it being an animal, our response can be different than if we were dealing with a human.


J. Baugh: True.


Wendy: And we might not take that as seriously as we should. So this is a time to pause, and say, "This is out there. And this could very well come up in your day-to-day clinical setting, and let's be prepared for that when it does occur, and treat that appropriately and consistently.” You want to make sure that you treat patients who have service animals, consistently. The ones that have the obvious disability, as well as the ones who don't have the obvious disability.


J. Baugh: I'm wondering if there is ever a scenario in a healthcare setting, in which I could deny the animal access from accompanying the patient. If I'm the physician that owns the clinic, or I'm the staff member who's working there in the office. Is there a scenario in which I would be able to deny the animal access from accompanying the patient?


Wendy: Yes, I think so. If there are legitimate, nondiscriminatory reasons that would interfere with the appropriate provision of healthcare services, then that is an appropriate situation where you could deny that animal access to where the patient would be. So the obvious setting, the OR.


J. Baugh: Right.


Wendy: So the operating room. That would be a setting where it is not appropriate to have a service animal, because of a sterile field, and that could cause potential injury and infection to the patient and could disturb the process as well. There's been some case law on that. In fact, with a dentist's office who was going to perform a root canal. And the patient showed up with the service animal, needed the service animal to assist them during obviously a stressful procedure.


J. Baugh: Right.


Wendy: A root canal. And the dentist made that call to not allow that service animal to be present and on the lap of the patient during the procedure. Litigation ensued, and it turned out that the resolution was in favor of the clinician in that setting, because it was some sterility and sterile field involved, and also because of the delicate nature of the instruments in the mouth. The dog being present, literally that close to these delicate instruments, that there could be a fear, it could disrupt the process and even harm the patient. So there are circumstances where it is not appropriate and it would interfere with the normal healthcare provision and safety.


J. Baugh: It sounds like from what you're saying, that that's not an excuse that a physician in any clinical setting could use to say, "I'm not going to allow a service animal." You're talking about an OR setting, maybe a setting which root canal is being performed, but it sounds like you can't just expand that to any healthcare setting and say, "I'm never going to allow a service animal into my clinic."


Wendy: Absolutely correct, and in fact we should err on the side of allowing that service animal into the setting as long as it doesn't interfere with the normal provision of healthcare services.


J. Baugh: So are there some appropriate and reasonable accommodations that I can make to avoid this type of conflict?


Wendy: We have had discussions with some offices, who are very open to animals in general, about having a crate with water and food available in a particular room. And invite the patient, if they would be willing to allow the animal to stay there during the procedure, or during the office visit. But if in fact it is an office visit in a clinical setting that there's not going to be any invasive procedure, and if in fact the animal is well trained, and if in fact the animal is not dirty and not going to disrupt the cleanliness of the clinical setting, then it is best to allow that service animal to accompany the individual.


J. Baugh: So as we draw this podcast to a close, Wendy, are there any tips or advice that you would like to add here at the end?


Wendy: Well, I believe that education is so important. And just realizing that this is a very real issue that occurs in the world in which we live and let's be prepared to deal with it appropriately, and to address it within the bounds of the law. And also taking into the fact that we want to provide the best care to our patients in this modern day setting and accommodate them under the law, so long as it doesn't interfere with our healthcare.


J. Baugh: Right. Well Wendy, we want to thank you for being here today and talking about a topic that I know is going to come up more and more in the future in the clinical setting, when it comes to service animals. And again, thanks for being here.


Wendy: Thank you so much for having me.


Speaker 1: Thank you for listening to this episode of Your Practice Made Perfect with your host J. Baugh. Listen to more episodes, subscribe to the podcast, and find show notes at SVMIC.com/podcast. 


The contents of this podcast are intended for informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice as specific legal requirements may vary from state to state and change over time.