Legal Pitfalls When You Refer Patients

Mark Crane


August 21, 2014

In This Article

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."


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