Avoiding Allegations of Negligent Referral
Referring patients to specialists is common in both dental and medical practice. In fact, making appropriate referrals is a recommended risk strategy to avoid poor outcomes that result from practicing outside of one’s scope of expertise. However, healthcare providers can be accused of “negligent referral” if they refer patients to specialists who mishandle the patients’ cases and cause injuries.
This article examines the allegation of negligent referral and offers strategies for how providers should handle referrals. Following are two case examples in which a general dentist and a family physician were accused of negligent referral:
Case 1 — Referral for Removal of Impacted Molar: Dr. C was a general dentist who had treated a male patient since he was a small child. In his teenage years, the patient began having trouble with his molars. Dr. C examined him and determined that one of the molars was horizontally impacted. Removing a horizontally impacted molar was outside of Dr. C’s scope of expertise, so she referred the patient to Dr. H, a local oral and maxillofacial surgeon whom Dr. C had known and referred to for many years. Although Dr. H used an appropriate method and all necessary care while removing the molar, the patient suffered damage to his lingual nerve (a recognized risk of this procedure). The patient sued Dr. H for malpractice and Dr. C for negligent referral to Dr. H.
Case 2 — Referral for Cataract Surgery: Dr. D was a family physician who had a long-term, older male patient who began to complain about diminishing vision. Dr. D did an examination and suspected the patient had cataracts. She recommended that the patient see Dr. M, a local ophthalmologist whom Dr. D had known and referred patients to for many years. The patient saw Dr. M and was diagnosed with cataracts. During cataract surgery, the patient suffered a retina injury (a recognized risk of this procedure), which resulted in permanent loss of vision in the affected eye. The patient sued Dr. M for malpractice and Dr. D for negligent referral to Dr. M.
In both cases, it appears that the referring providers made appropriate referrals for appropriate reasons — yet both were sued for negligent referral. However, no negligence occurred in either case. The fact that a provider refers a patient to a certain specialist, and the patient subsequently suffers a suboptimal outcome as a result of treatment from that specialist, does not provide a basis for an allegation of negligent referral. This is true when the patient suffers a recognized complication of a procedure, or even when the specialist makes a mistake that results in a patient injury.
Negligent referral occurs when the provider does not use appropriate care in determining that a referral is necessary or in referring the patient to a qualified specialist — e.g., if the referring provider knew or should have known that the specialist was not competent to render the needed care. Lack of competency might result from various factors. For example, the necessary care might be outside the specialist’s scope of practice, or an impairment might jeopardize the specialist’s ability to provide safe care (e.g., an illness, injury, substance abuse, or overall declining health).
Every specialist has cases that result in suboptimal outcomes and occasional cases in which errors are made. That does not — in and of itself — make the specialist an inappropriate referral resource. Again, the allegation of negligent referral only applies when the referring provider has reasonable grounds to believe that a patient will have a suboptimal outcome as a result of the specialist’s treatment.
In the previous case examples, the patients might have had grounds for negligent referral allegations if (a) Dr. C had referred the patient to a specialist who had no expertise in, or experience with, removing horizontally impacted molars, or (b) if Dr. D had knowingly referred the patient to an ophthalmologist who was unable to provide safe patient care as a result of a physical impairment.
Strategies to Avoid Allegations of Negligent Referral
One effective way to avoid allegations of negligent referral is to give patients choices related to their care. Although occasionally a situation might occur in which there is only “one person for the job,” generally more than one specialist is available, even if some travel is involved. If primary care providers know of several competent specialists in the area, then they should provide patients with a list of these specialists.
Primary care providers also might suggest that patients contact their insurance carriers to obtain specialist recommendations (and to verify coverage). Practitioners also might consider referring patients to a local dental or medical society to see whether the group recommends any particular specialists. Finally, especially for unusually complicated cases, it might be appropriate for primary care providers to refer patients to dental or medical schools.
If a patient wants to see a specialist with whom the primary care provider is not familiar, the practitioner should tell the patient that they simply have no knowledge of the specialist and cannot offer any opinion as to whether this particular specialist would be a good choice.
A more difficult situation occurs if the patient wants to see a specialist who does not inspire the primary care provider's confidence. One option is for the provider to say that they have not worked with this specialist to any extent and would feel more comfortable if the patient sees one of the doctors on the recommended list of specialists.
Sometimes patients can be resistant to referrals, preferring instead to have their primary care providers treat the condition. However, once practitioners decide to make referrals, they should stick with that decision despite any appeals from the patient. The likelihood of a suboptimal outcome increases when providers stretch the boundaries of their expertise and competency.
In Summary
Specialty referral is an integral part of dental and medical practice. From a risk perspective, primary care providers should limit their scopes of practice to procedures for which they are well trained and experienced, and refer difficult cases to qualified specialists. Involving patients in decision-making and offering options for appropriate specialists can support the ultimate goal of high-quality and patient-centered care.
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