Medscape Business of Medicine
Mark CraneDisclosures
August 21, 2014
Story Source
Refer at Your Own Risk
Can you be sued for malpractice because a specialist to whom you referred a patient botches her care?
Yes. Courts have upheld many cases filed on the theory of “negligent referral” — when the referring doctor knew or should have known that there’s a strong possibility the specialist would act below the standard of care.
“The courts use a ‘reasonable man’ standard. That means the jury decides whether a reasonable physician would have made this particular referral,” said Michael J. Sacopulos, a malpractice defense attorney in Terre Haute, Indiana, and CEO of the Medical Risk Institute.
But what if you don’t know anything is wrong, and you thought your referral was valid? The burden of proof is on the plaintiff to show that the referring doctor knew or should have known that the specialist had a problematic standard of care.
A primary care doctor may have no reason to suspect a specialist’s problems. “You may know the specialist is licensed and has privileges at the local hospital,” he said. “That’s a cloak of credibility. But if a doctor is new to your community and you haven’t dealt with him before, it’s worth finding out whether he’s board-certified and credentialed by the hospital.”
Right now, that research could be enough to protect you. But that could change in the future.
An emerging area of liability for negligent referrals may come from the myriad of doctor rating services. “Millions of Americans use these online services to select their doctors,” said Sacopulos. “Perhaps doctors should check them out as well before making a referral, particularly if they don’t know the specialist.
“I haven’t heard of any cases filed against primary doctors for negligent referral based on doctor ratings, but I believe they are going to happen,” says Sacopulos. “These ratings can be very subjective. But if 90% of a specialist’s ratings are negative, that’s a tip-off. I can see a plaintiff making a case that you should have checked it out.”
What Is a Negligent Referral?
A Pennsylvania court ruled that a patient may hold a general practitioner responsible for referring her to an incompetent specialist.[1]
In one well-known case, the patient saw her GP because of vaginal bleeding. He diagnosed endometrial cancer and referred her to a gynecologist. That physician and an assistant surgeon performed a total hysterectomy. The doctors cut one of her ureters and stitched the other closed, the lawsuit alleged. Neither doctor sampled the surrounding lymph tissue for cancer. The errors were so severe that the patient was unable to continue radiation treatment. As a result, the cancer metastasized and she died 3 years later, according to court records.[1]
The woman’s estate sued all three physicians and the hospital where surgery was performed. The hospital had corporate liability because it knew that the Pennsylvania State Board of Medicine had previously brought disciplinary action against the gynecologist, a judge ruled. Her application to the hospital included reports of prior malpractice claims, denial of liability insurance, and suspension of clinical privileges.
“The gynecologist was functioning as a specialist treating women with cancer, but doing so without proper training, board competency, or clinical privileges specifically related to radical surgery for cancer,” an expert witness testified. “The hospital could have prevented this.”
The judge found that the GP had been aware of problems with the gynecologist’s training and experience. The court imposed a duty on general practitioners to intervene when they know or should know of a specialist’s incompetent treatment. “The court is saying that the gatekeeper — the GP who refers a patient to a specialist — needs to be diligent,” the estate’s attorney said.
“The burden of proof that the GP should have known of the specialist’s incompetence is with the plaintiff, and these cases are fact-sensitive,” said Sacopulos. “Any doctor on a hospital credentialing committee, for example, is on notice of potential problems.”
A primary physician can also be sued for failing to properly follow up with the patient and the specialist. “A primary doctor sends a patient to a specialist for her annual mammogram,” said Sacopulos. “The specialist writes a report saying that some additional care and follow-up are needed. But the primary doctor never got the report. These communication problems are a common cause of injuries and lawsuits. The primary doctor needs to make sure that the patient actually saw the specialist, that all reports are received and acted on and don’t fall between the cracks.
“If you know that a specialist is sloppy about follow-up, the primary doctor’s responsibility is to call him,” he said. “Make sure your staff stays on top of this. Your patient expects, and the law requires, that you interact with the specialist in the patient’s best interest.”
“Negligent referral can also include writing a letter of recommendation for a doctor,” he said. “A Louisiana physician wrote a letter extolling the virtues of an anesthesiologist who was applying for a job with a Washington state group practice. The group hired the doctor in part on the basis of that endorsement. A patient suffered extensive brain damage because of the anesthesiologists’ negligence. It turned out that he had long-standing substance abuse problems that should have been known to the letter-writer. A jury awarded the patient $4 million, and the letter-writer was included in the judgment.”
More Dangers Involved With Referrals
Health plans and hospitals can be sued under a theory of vicarious liability. A managed care plan had a panel of 38 podiatrists, said Sacopulos. A patient chose one and alleged improper postoperative care, resulting in gangrene and amputation of two toes. A court held that the plan was liable for the negligent actions of the doctor. If an ER doctor is negligent, the hospital can be liable because the doctor is considered its agent.
Referring to the wrong type of specialist is another pitfall. “Perhaps you referred the patient to a podiatrist when he should have gone to an endocrinologist,” he said. “Or you referred to a chiropractor when the patient needed an orthopedist or neurosurgeon.”
“There’s potential liability, because you’ve sent the patient down the wrong path and wasted time in not considering alternatives,” says Sacopulos.
Luckily for the referring physician, the burden of proof is on the plaintiff to show that the referring doctor knew or should have known that the specialist was substandard.
Sacopulos offers these tips to help physicians avoid liability in negligent referral cases:
• Be honest. Don’t hype the specialist’s qualifications. You’re making a referral, not selling a used car. Hyperbole can get you into trouble.
• Never make a referral strictly for monetary gain. Be careful of referrals that might trigger anti-kickback laws.
• Make clear to the patient that the physician to whom you are referring is not your agent, employee, or partner, etc. That specialist is independent from your practice.
• Does the referral meet the “reasonable man” standard? Would a reasonable doctor in the same situation make this referral?
• Make sure to follow up with both the patient and referring physician. Your liability continues beyond just matchmaking. Make sure all reports are received and read.