Your Side of the Story Matters…But Only Sometimes
As a federal veterinarian, complaints are a part of your business. If your act, error or omission results in a loss, regardless of facts or extenuating circumstances, there will be complaints and investigations and possibly lawsuits and disciplinary actions. Tyson Foods, Inc. recently filed suit alleging veterinary misconduct resulting in a loss excess of $2,400,000 against the United States Department of Agriculture – Food Safety and Inspection Service.
If you’re not familiar with the process, in this and many cases involving loss of livestock resulting from an alleged act, error or omission on the part of a federal veterinarian, the complainant (i.e., the plant or individual) wishing to file a tort claim under the FTCA follows the administrative requirements set forth in 28 U.S.C. § 2675, by submitting Form SF-95, Claim for Damage, Injury, or Death, to the USDA-FSIS. The SF-95 provides the agency with the necessary information needed to investigate and resolve the complainants tort claim for loss or damages. In this particular case, the SF-95 submitted to USDA-FSIS fully described the basis for the claim and identified a monetary sum quantifying the damages suffered as a result of the alleged tortious misconduct by the veterinarian resulting in the Tyson Foods loss. After review of the information, the Office of General Counsel for USDA notified Tyson Foods via letter of its denial of the claim and of its right to file suit.
Tyson Foods, Inc. v. United States of America was filed on May 14th, 2019, and while this is currently a case against the government under the FTCA, it could have easily been a case against the individual veterinarian as well. The very next day, the lawsuit made its way into the news. As we all know, media coverage rapidly and immeasurably influences how a claim or case is portrayed to the public. The media extensively broadcasts pretrial coverage, especially in high-profile or political cases, so it is difficult for the general public to wait until all the information is presented in order to make a fair and objective opinion on the case. This has an adverse effect not just on federal veterinarians, but on hard-working men and women employed throughout the federal government.
Here’s what does and doesn’t matter when it comes to scrutiny involving a federal veterinarian who is facing an allegation that he or she failed to ensure the slaughter of animals within regulation, failed to ensure the humane treatment of animals, failed to ensure that proper time and procedures were adhered to, or is facing an allegation that he or she negligently performed duties resulting in the improper release of infected or contaminated items into the food supply:
Monetary loss matters. The larger the loss or lawsuit, the more scrutiny and media attention, and possibly even political attention, it will receive. If a large loss occurs and doesn’t result in a lawsuit, federal veterinarians are still at risk for OIG, Agency management/misconduct, Congressional, or State Veterinary Board Investigations – and possibly, or more accurately, very likely - disciplinary action.
Contaminated food supply matters. Federal veterinarians often face suspensions for negligent performance of duties resulting in the improper release of infected, contaminated or otherwise improper items in the food supply, including those resulting in recalls. How many do you think had adequate legal representation?
What doesn’t matter is the whole story. At least not for the months or years until the case is tried, and all aspects of the case are presented. Often times, the media coverage of initial allegations is newsworthy for days or weeks or more, yet the final verdict gets just a few minutes of media attention, if at all. For some veterinarians, offices or agencies, the truth doesn’t even matter in the end. The damage is already done. How often do you see the media or politicians apologizing or correcting prior comments or coverage especially when it vilified a defendant or federal worker?
For the individual federal veterinarian, what also doesn’t matter, at least initially, is extenuating circumstances. Is this your regular inspection site? Your regular type of inspection? Are you following every single policy, rule and regulation? None of this changes the fact that an allegation can still be made. And if you are under the microscope, you will be hard pressed to find an investigator that will not find something wrong, at some time, on some assignment. If an allegation is made against you, your challenge is to defend yourself successfully. You will be dealing with a process that limits your rights and access to information. All too often, federal employees don’t consult with an attorney to understand his or her legal rights and obligations in the investigative process. You need to understand the power of the investigator and the parameters of the law under which you’ve been accused. Far too many employees are dead certain they did nothing wrong, and then went to the initial interview without obtaining legal advice, only to learn that they unknowingly admitted to violating some law, rule or regulation. Much more often than you think, fellow feds have found themselves facing proposed disciplinary action while dutifully, honestly and innocently performing work on behalf of the Federal Government.
And the more egregious the perception of wrongdoing, the more the possibility exists that the individual veterinarian could face more than disciplinary actions, such as a personal capacity lawsuit or even a criminal investigation.
For the supervisory veterinarian, did you know you could also be held accountable for the actions of your subordinates? In high profile cases, accountability is key. In almost every recent case against an employee, there is a supervisor facing an allegation, investigation or disciplinary action resulting from a subordinate’s actions or inactions.
You do not have to face allegations alone. You do not have to go into debt or put your family’s finances at risk to protect your interests. The NAFV recommends that you get professional liability insurance. It is very inexpensive and provides you with your own personal attorney to defend acts, errors or omissions while performing your job. The quality of your representation matters, especially when you are comparing it against the quality of the representation hired by wealthy companies like Tyson Foods.
You can secure coverage in less than 5 minutes but it must be in place prior to an incident. Don’t wait until it’s too late.
Don’t forget to use code "NAFV” for membership pricing.
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