Physician referrals have skyrocketed in recent decades, surging 159% from 1999 through 2009, according to well-sourced and widely cited data. In other words, a jump from 41 million to 105 million physician referrals in one decade.
While researchers have yet to identify why referrals have spiked, they have uncovered another important fact: each year in the U.S., approximately 19.7 million patients are misreferred. They are sent to a physician who is not suited to address or treat the patient’s condition.
This can be problematic from both a healthcare and a legal perspective. It can delay critical treatments, allow serious injuries or illnesses to worsen, and potentially limit treatment options when patients are finally able to connect with a better suited physician or medical specialty.
Moreover, misreferrals can also create liability for referring physicians, which can ultimately lead to providers ending up under legal fire when serious injuries are linked to alleged referrals errors.
Common Referral Errors That Create Liability for Physicians
Doctors and specialists who refer patients for consultation are typically not held liable for the malpractice of the consulting physician. That does not, however, absolve them of liability for the referral itself. Here are four ways in which referral liability can evolve for referring healthcare providers.
Clinically inappropriate referrals can happen when physicians do not have enough information about specialists or when they let personal relationships serve as the basis for referrals. They can also occur when patients are referred to:
- Unqualified or unlicensed providers
- Providers who are too busy to schedule timely appointments
- Providers with a record of disciplinary action or professional censures
Misreferrals cost at least $1.9 billion each year in unnecessary co-pays and lost wages, experts say. In some cases, misdiagnoses or failures to diagnose by the referring physician are also factors.
An interesting twist on referral liability occurred in Datiz v. Shoob, a case in which a referring physician argued that he should be absolved of vicarious liability since he made a timely referral to a specialist, and that he could not be held for the specialist’s subsequent medical negligence. While the appellate court agreed that referring physicians are generally immune from vicarious liability, the court also found that a jury was not improper to conclude that the referring physician had been independently negligent in diagnosing the patient’s condition. In this regard, the referring physician “cannot escape liability merely by showing that the subsequent treating physician to whom the plaintiff was referred was also negligent.” The verdict against the defendant referring physician was ultimately upheld by the New York Court of Appeals.
2. Insufficient Communication
This can include failing to provide medical findings, test results, and patient history to the specialist who is accepting the referral. It can also include failing to communicate when:
- The referring physician and specialist have conflicting findings.
- It is clear that the specialist is unable to treat or address the patient’s condition.
Yanchynska v. Wertkin is a case in which the referring physician was held liable for failing to communicate with a specialist following a referral. This case involved the delayed diagnosis of a breast malignancy. The plaintiff alleged that the referring physician failed to communicate his findings (of palpable masses) to the specialist, which delayed the diagnosis and contributed to the patient’s injuries. In December 2019, the case was presented before the Supreme Court of New York. It ruled that the referring physician could be liable for his failure to communicate with the specialist and, therefore, the complaint against him should not have been dismissed by the lower court.
3. Failures to Refer
As part of their duty of care, physicians have a professional, ethical, and legal duty to acknowledge the limits of their competency. That means they must refer patients who need outside consultation to specialists who can provide the necessary evaluation and care.
When healthcare providers fail to honor this duty of seeking consultation in a timely manner, they can be held liable for the resulting harm and injuries. Commonly, failures to refer occur in primary care and emergency department settings.
Some cases that have addressed physician liability for failures to refer patients include:
- Smarkucki v. Kleinman, alleging a provider’s failure to promptly refer a patient to a hospital
- Solano v. Ronak Medical Care, alleging a provider’s failure to issue an otolaryngology referral
- Borawski v. Huang and Daugharty v. Marshall, alleging a provider’s failure to issue a gastroenterology referral
The assurance of accessible, ongoing care is a crucial part of referrals. If a physician makes a referral and withdraws care, but the patient refuses the referral, the physician can be viewed as having “abandoned” the patient.
Mevorah v. King is an example of an abandonment case, in which several physicians were held liable for a patient’s injuries resulting from the withdrawal of care without a proper referral. This abandonment case involved allegations of dental malpractice, and it ended up before the Supreme Court of the State of New York in 2003. In its ruling, the state’s high court not only affirmed physician liability for abandonment, but it also provided crucial guidance on the use of expert affidavits in malpractice cases.
Specifically, the ruling explained expert affidavits are not required for abandonment claims, elaborating that “common sense and ordinary experience and knowledge, such as is possessed by laymen, without the aid of medical expert evidence, might properly suggest that the condition of the plaintiff at the time that he was abandoned by the defendants was not compatible with skillful treatment.”
The Role of Consulting Experts in Referral Error Cases
Determining when referral errors raise liability—and proving or refuting liability in these cases—requires a careful examination of medical records, diagnostic test results, professional credentials, and much more. As such, aligning an appropriate, unbiased healthcare provider to review medical records and pertinent documentation will be critical. These individuals are crucial assets in referral negligence claims, providing support to defense and plaintiff by shedding light on standards of care, harm, and causation.
In order to evaluate a case theory, a consulting or testifying healthcare provider will typically focus on answering critical questions such as (but not limited to):
- Was the referral timely and appropriate, given the information available?
- What was the relationship between the referring physician and the specialist?
- How does a particular physician or practice make referrals? What standards are used to determine when a referral is necessary and to whom (which specialist) a patient is referred?
- What percentage of patients does a physician refer to specialists?
- What are the credentials and professional record of the referred specialist? Is there anything in his or her history that would raise issues regarding competency or quality of care?
- Would the injuries or harm have been preventable if the referral was issued earlier or to a different specialist?
- If the patient refused the referral, did the referring physician document follow up with the patient and document why the referral was refused? Was another referral provided?
- Are other issues of medical negligence at play, like a failure to diagnose or misdiagnosis?
Both plaintiff and defense attorneys can gain essential insight to support, refute, or offer clarity for a case when they engage with the right testifying healthcare provider. From evaluating referral standards and specialists’ backgrounds to testifying about referral best practices and errors, these consultants can play a crucial role in establishing and disputing liability, opining on the duty of care, and elucidating the complex medical issues in referral negligence cases.