Legal Pitfalls When You Refer Patients

Mark Crane

Disclosures

August 21, 2014

In This Article

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."

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