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.
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Cite this: Legal Pitfalls When You Refer Patients - Medscape - Aug 21, 2014.