Negligent Referral

Did you know that physicians can be sued under the theory of negligent referral? If the referring physician knew or should have known that the specialist would act below the standard of care, he can be liable for negligence. The plaintiff has the burden of proof in this particular situation. In one particular case, the court stated that the referring physician must be diligent and as a gatekeeper for referrals. 

Physicians can also be held liable for referring the patient to the wrong type of specialist, for example, if you refer a patient to a Neurologist, when they really need to see a Neurosurgeon. 

What is the best way to avoid getting sued under this doctrine? When referring a patient to a specialist, unless you know of the specialist qualifications and a reasonable physician would also refer the same specialist, it is probably best to tell he patient what type of specialist they need and let them research and find a specialist they would like to see within their health plan. 

American Association for Justice. Negligent referral is a valid claim, court says. The Free Library. June 1, 1999. http://www.thefreelibrary.com/Negligent+referral+is+a+valid+claim,+court+says.-a054939489

Crane, M. Legal Pitfalls when you Refer Patients. Medscape. August 21, 2014. http://www.medscape.com/viewarticle/828402

Medical Liability Risks Associated with Communicating with Patients "Virtually"

With the increased use of technology in medicine, some physicians have started to interact with patients via this method. Some interact with well-established patients, other with new patients they have never met before. Some interact via email, telemedicine, or videoconferencing. This use is sure to increase exponentially over the next few years. Since this is a relatively new method of communicating with patients, the medical-legal landscape is unknown. 

On one hand, some argue that you cannot have a good physical exam and evaluation of a patient without actually having the opportunity to touch and examine the patient in person and that without doing so, you are providing substandard care. On the other hand, some argue that this is a very efficient way to see low acuity patients, and if they need more examination or care, they can always make an appointment to visit the physician in person, or be directed to go to the emergency room or call 911 if deemed necessary. 

According to a recent article, the number of “remote patient visits” is still very low when compared to actual in person visits, therefore there are a low incidence of malpractice claims to date. Malpractice insurance does cover telemedicine and it seems to have been accepted as the standard of care in medicine in appropriate situations. Most of the virtual networks will also limit their liability; again, by only seeing minor, low-acuity patients, that will again, limit their liability and risk. 

Another concern is with physicians that communicate with patients in other states. Every state has different rules for online consultations or telemedicine, most will likely require some type of licensure in that state in order to legally conduct this service. 

This topic has been of great interest to me over the years (and the topic of my Masters in Health Law Thesis and subsequent publication). My advice; first, for physicians that are contemplating beginning online medical consultations or telemedicine, they should first contact their current malpractice insurance carrier to determine if this service would be covered under their policy. Second, if attempting to practice in multiple states, physicians should contact those states medical licensing boards to determine their telemedicine requirements. Third, notify your insurer if your plan to practice in multiple states. 

Overall this appears to be an efficient method of seeing low acuity patients. I will be keeping a close eye on the developments in this area. 

Bailey, R. The Legal, Financial, and Ethical Implications of Online Medical Consultations. 16 J. Tech. L. & Pol’y 53 (2011).

Chesanow , N. Do Virtual Patient Visits Increase Your Risk of Being Sued? Medscape; October 22, 2014 http://www.medscape.com/viewarticle/833254?src=wnl_edit_tpal&uac=184121PG