Referring a patient to a physician in the wrong specialty, or to a doctor who the referring physician knows or should know is impaired, could result in a lawsuit alleging negligent referral, according to David S. Waxman, JD, an attorney with Arnstein & Lehr in Chicago.
However, a referring doctor is not vicariously liable for the acts of an independent consultant. "As long as the negligent acts of the consultant are not foreseeable, it is hard to see where a referring doctor can be held directly responsible for such acts," says Waxman.
While a referring physician generally can't be held liable if their consultant commits malpractice, there are exceptions. "If the consultant is known to be impaired, the referral could be called into question," says Waxman. "If the specialist is not in the field which the patient needs to see, there could be a problem."
Waxman says there is more potential for liability for a referring physician when the scope of the referral is still within their practice area. For example, if an internist refers to a pulmonologist or a cardiologist, it might be alleged that the internist should know enough about the lungs or the heart to have identified and or prevented the mistakes of the consultant.
"There, the internist is not responsible for the acts of the consultant," says Waxman. "But he or she might be accused of not acting on medical problems still within the realm of internal medicine."
Waxman says a referring physician "should certainly know something" about the consultant, such as board certification or hospital privileges. "Any questions regarding qualifications can be pretty easily resolved, either by Google, a staff member, or both," he says.
Demonstrate due diligence
Claims alleging that a physician breached the community standard, and thereby committed medical negligence, by inappropriately referring a patient to another practitioner are relatively uncommon, says Richard F. Cahill, Esq., vice president and associate general counsel for The Doctors Company, a Napa, CA-based medical malpractice insurer.
"Inevitably, the issue will be to what extent the referring physician was personally acquainted with the specialist, including his or her education, training, experience, board certification and other professional qualifications," says Cahill. If there is no personal knowledge on which to rely, the referring physician will need to be able to demonstrate, if an adverse event subsequently occurs and litigation ensues, that he or she undertook due diligence prior to the referral consistent with what other colleagues would have done under the same or similar circumstances
"The likelihood of an adverse jury verdict substantially increases if the referring physician knew, or should have known through the exercise of due diligence, of information that would lead a prudent practitioner to have declined making the referral," says Cahill.
- Richard F. Cahill, Esq., Vice President & Associate General Counsel, The Doctors Company, Napa, CA. Phone: (800) 421-2368 Ext. 4202. Fax: (707) 226-0370. Email: RCahill@thedoctors.com.
- David S. Waxman, JD, Arnstein & Lehr, Chicago. Phone: (312) 876-7867. Fax: (312) 876-0288. Email: dswaxman@