07 May Glad You Asked That
Q & A from the IVMA
Below are a few questions that have been asked by IVMA members over the last few months. Answers are provided below. As always, though, consult your own legal counsel for specific legal advice.
Question: How long do I have to keep animal health records?
Answer: You must keep animal health records for three (3) years after the last encounter with the animal.
Note that it is important to document, document, document. Further, it is appropriate to include in the animal health record communication you have with the client regarding treatment options and if diagnostics were offered or recommended, if referral was offered or recommended, and if the client refused the recommended diagnostics, treatment plan, or referral.
Question: Does a veterinarian have to own a veterinary clinic?
Answer: There really are very few laws dealing directly with veterinary practice ownership. We probably should first define what “ownership” means. There is no statute or regulation that explicitly defines what it means to have “ownership” of a veterinary practice. The general concepts of ownership that may be applicable are:
Sole proprietorship: an individual owns and is the business
Partnership: two or more individuals in partnership own the business
Professional Corporation: shareholders own the business
Limited Liability Company: members own the business
Obviously, if a veterinary practice is run by a sole proprietor, the sole proprietor must be a licensed veterinarian. In a partnership, at least one partner must be a licensed veterinarian.
If the practice is a Professional Corporation, there is a clear law that states “one or more veterinarians may form a professional corporation to render services that may legally be performed only by a veterinarian.” IC 23-1.5-2-3(a)(5). However, it also states the Professional Corporation “shall have at least one shareholder who is licensed in Indiana.” IC 23-1.5-2-3(c)(1). That means, then, that a Professional Corporation to render veterinary services may only be formed by at least one licensed Indiana veterinarian who is a shareholder. It is permissible for other licensed veterinarians, who are not shareholders, to render services on behalf of a Professional Corporation, so long as one shareholder is a licensed Indiana veterinarian.
A Limited Liability Company is sort of a hybrid partnership/corporation. To be formed it does not have to be a corporation but is owned by “members.” The LLC has similar limits of liability as a corporation. While there are a select group of professions that are specifically allowed to form LLC’s (or other business entities) as opposed to P.C.’s and not have the ownership restrictions, veterinarians do not appear to be one of these select group of professions. Indiana law provides that an LLC has the same powers as any individual to operate a business, including “to the extent authorized by the licensing authority to provide professional services.” IC 23-18-2-2(15). The law also provides that “nothing in this article is intended to restrict or limit in any manner the authority and duty of any licensing authority or to regulate the provision of professional services.” IC 23-18-2-3. It appears to me that whether an LLC that is formed when no member is a licensed Indiana veterinarian can perform veterinary services in Indiana is at the discretion of the Indiana Board of Veterinary Medical Examiners. The Board has published no laws regarding this issue and there is no case law in Indiana as to whether an LLC that does not have any members who are licensed Indiana veterinarians can perform veterinary services. It appears to me that such an LLC would need to petition the Board for that authority. If at least one member of an LLC is an Indiana licensed veterinarian, then I would think the LLC could legally operate in the same way as a PC, but the Board could view that differently. It may be worthwhile to contact the Board to find out if it has a position on this issue.
Question: Our practice has had a number of incidents of clients bring in animals found as strays, adopted as an adult, purchased as an adult, etc. We offer to scan the animal for an existing chip and find one. Now what? Sometimes the clients refuse to notify the previous owner of their possession or we are asked to just accept their word that they came to have the pet legitimately. Many questions arise. What are our responsibilities and to whom; the client presenting the pet or the original owner? Do we contact the previous owner despite what the presenting person wants?
Answer: The Indiana State Legislature does not appear to have enacted any legislation or regulations with respect to the microchipping of pets, scanning animals for microchips, or what should be done when a microchipped pet is brought in to a veterinary office by someone other than the registered owner of the pet. The Board of Examiners has also not issued any regulations on the subject. As a result, it is necessary to examine this issue in the context of local or municipal ordinances, the criminal code, civil law, veterinary medical ethics, and veterinary medicine regulations.
There does not appear to be any uniformity amongst Indiana Counties with respect to municipal or other ordinances relating to the handling of microchipped animals. Elkhart County, for example, does not appear to have adopted any ordinances with respect to the treatment of animals found with microchips. However, Marion County (Indianapolis) has adopted an ordinance regarding the handling of found animals with microchips.
Pursuant to the Marion County Ordinance, it appears that the finder of a lost domestic pet is obligated to notify the Marion County animal care services division within 48 hours of finding the animal. The ordinance provides that the
animal may remain in the custody of the person who found it or in the custody of the animal care services division for the next fourteen days. A found report is to be made with the animal care division to allow the domestic pets owner the opportunity to locate the animal. The animal care division appears to have the authority to order the animal to be scanned for a microchip, although the ordinance does not appear to require it. Further, other than filing the found animal report, it does not appear to impose any further duty with respect to finding the owner. The ordinance further provides that 14 days after the found animal report was filed with the animal care services division the found animal is considered to be owned by the finder of the animal.
While the ordinance delineates the responsibilities imposed upon the finder of a domestic pet, it says nothing about any obligations imposed upon veterinarians with respect to found animals.
Under Indiana Law, domestic pets are considered to be personal property. Lachenman v. Stice, 838 N.E.2d 451, 467 (Ind. Ct. App. 2005).
Indiana Code 35-43-4-2 defines the crime of Theft in relevant part as follows:
(a) A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class A misdemeanor. However, the offense is:
(1) a Level 6 felony if:
(A) the value of the property is at least seven hundred fifty dollars ($750) and less than fifty thousand dollars ($50,000); …
The Indiana Code 35-43-4-3 defines the crime of Conversion in relevant part as follows:
(a)A person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion, a Class A misdemeanor.
Indiana Code 35-42-4-3(a). The Courts have identified the distinction between the crimes of theft and conversion to be the intent of the accused to deprive the rightful owner of the property of the value or use of the property at issue. Lane v. State, 953 N.E.2d 635 (Ind. Ct. App. 2011)(citing M.Q.M. v. State, 840 N.E.2d 441 (Ind.Ct.App.2006)). The finder of an animal who keeps the animal without determining whether the owner has abandoned it, potentially falls within the letter of the law for the crimes of conversion or theft. If that animal is brought into a veterinary office and it is determined that
the pet is microchipped and a registered owner is identified, and the animal finder refuses to attempt to return the animal or determine if the registered owner has abandoned the animal, their actions may fall within the letter of the law for the crimes of conversion and theft. While a county prosecutor may not have any interest in bringing charges for the action assuming that the found animal was not taken from the rightful owner’s property, the animal finder is potentially criminally liable as a result of their continued exertion of “unauthorized control” over the property the registered animal owner.
The question then would be whether a veterinarian would potentially be exposed to criminal liability for returning a found animal to the animal finder after scanning the animal and determining that the animal has a registered owner other than the animal finder. A veterinarian could potentially face criminal liability as a principal for the crimes of conversion or theft, and could also face criminal liability as an accomplice to the animal finder under Indiana’s accomplice liability statute.
A search of Indiana case law reveals no instances of appellate cases wherein a veterinarian has been prosecuted for theft or conversion as either a principal or accomplice. Despite this, given the fact that a veterinarian, once they have determined that the finder of the animal is not the registered owner and that there is in fact a registered owner, any action they take with respect to the found animal would be done without the authorization of the owner of the animal and thus would potentially qualify as conversion.
The potential for criminal liability as an accomplice is greater. The Indiana Code provides that “[a] person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense. Ind. Code § 35-41-2-4. Courts have interpreted this provision to not require the “evidence show that the accomplice personally participated in the commission of each element of the offense.” Wilson v. State, 455 N.E.2d 1120, 1123 (Ind. 1983). “[T]he acts of one accomplice are imputed to all.” Collier v. State, 470 N.E.2d 1340, 1342 (Ind. 1984). “So long as the State shows that one participated in the commission of an offense as an accomplice, the accomplice ‘is criminally responsible for everything which follows incidentally in the execution of the common design, as one of its natural and probable consequences, even though it was not intended as part of the original design or common plan …’” Griffin v. State, 16 N.E.3d 997, 1003–04 (Ind. Ct. App. 2014)(citing Johnson v. State, 605 N.E.2d 762, 765 (Ind.Ct.App.1992)). “The particular facts and circumstances of each case must be considered in determining whether a person participated in the commission of an offense as an accomplice.” Peterson v. State, 699 N.E.2d 701, 706 (Ind.Ct.App.1998). Each participant must knowingly or intentionally associate himself with the criminal venture,
participate in it, and try to make it succeed.” Cohen v. State, 714 N.E.2d 1168, 1177 (Ind.ct.App.1999), trans. denied. The courts have held that mere presence at the scene of a crime is insufficient to make one an accomplice, but that presence in conjunction with other factors may be considered. The factors delineated by the court include: (1) presence at the scene of the crime; (2) companionship with another at the scene of the crime; (3) failure to oppose commission of crime; and (4) course of conduct before, during, and after occurrence of crime. Bruno v. State, 774 N.E.2d 880, 882 (Ind.2002).
The third factor “failure to oppose commission of the crime” seems to be the most significant. If a veterinarian were to return a found animal to the finder knowing that there is a registered owner who may not have abandoned the animal or who may want the animal returned, supports an argument that the veterinarian knew that the finder was potentially engaged in criminal activity and chose not to oppose the commission of the crime. While overall it seems unlikely that a county prosecutor would pursue a case against veterinarian for this conduct, it still does not seem like a risk that a veterinarian would want to take.
While criminal liability for a veterinarian, though possible, seems unlikely, an aggrieved registered animal owner could bring suit against the animal finder and veterinarian under a theory of civil conversion. The elements necessary to establish a civil cause of action for conversion are found in the criminal conversion statute, but a plaintiff in a civil conversion action is only required to prove those elements by a preponderance of the evidence as opposed to beyond a reasonable doubt.
Implications of the Veterinarian-Client-Patient Relationship
The Indiana Code defines the veterinarian-client-patient relationship and provides for restrictions on the disclosure of information related to client and patient information.
In the situation of a found animal brought into a veterinary office by the finder of the animal, the finder of the animal would appear to qualify as a client as defined in the Indiana Code as a “person who is responsible for an animal that is examined or treated by a veterinarian.” The animal would clearly qualify as a patient. As a result, a valid veterinarian-client-patient relationship would exist. Assuming the existence of such a relationship, it would appear that any information obtained during treatment or kept as a result of the interaction between the veterinarian, client, and patient would be privileged pursuant to 25-38.1-4-5.5. Because the information, including any information obtained from scanning a pet microchip would potentially fall within the scope of confidential records
pursuant to Indiana Code 25-38.1-4-5.5, the information could only be disclosed to the registered owner of the animal, if the animal finder consented to the release of the information. Releasing the information to the registered owner of the animal without the consent of the client/finder of the animal could potentially be a violation of the veterinarian-patient-client relationship and could expose the veterinarian to civil and professional sanctions.
There does not appear to be any law in Indiana which would mandate that the veterinarian report to a government agency or the purported registered owner. Of course, the mere fact that there is a microchip does not conclusively prove ownership. It would appear unlikely that the veterinarian would be subjected to criminal or civil penalties.
However, if the veterinarian wishes to adopt a procedure designed to attempt to implement full protection, the veterinarian should first check local regulations applicable to their practices whether at the county or city level to determine if any laws provide specific rules for what is to be done with found animals. When a veterinary office is contacted by a potential client who wants to bring a found pet in to be checked out, the veterinary office should have the client execute a written agreement before providing any treatment. The agreement should state that the veterinary office will contact animal control, or other appropriate agency in their county and make a found pet report. The agreement will authorize the agency to scan the found animal for a microchip. The agreement requires that the pet finder waive any claimed privilege related to the disclosure of patient information to allow the veterinary office to contact the registered owner. If a chip is detected, the veterinary will hold the animal while attempting to contact the registered owner. If the registered owner is looking for the animal, it will be returned to the registered owner. If the owner cannot be contacted or relinquishes the animal, the finder may adopt it.