INFORMATION FOR NEW LNCs

IT'S ALL FREE!

LNCtips.com: Negligent Medical Referrals

Negligent medical referrals occur for many reasons.  For example, the physician may fail to timely refer the patient to an appropriate specialist.  But what happens when a physician refers the patient to an appropriate specialist and the patient doesn't go?  What happens when that same patient later develops a severe medical problem or life-threatening condition?  Is that a negligent medical referral?  The answer is, "It depends."

Before we start, let's look at the term "physician."  For the sake of simplicity, I'm going to use the word "physician" when I refer to the type of healthcare provider who makes referrals.  Of course, physician assistants, advanced practice RNs, dentists, optometrists, chiropractors, and other healthcare providers also make referrals. 

When a physician makes a referral, the expectation is that the patient will see the specialist in the near future.  If the patient doesn't timely act upon the referral and later has a preventable bad outcome, are there grounds for a medical malpractice case?  I've seen a number of cases in which patients filed suit in these circumstances.  In those cases, the plaintiffs claimed:

* The physician didn't emphasize what could have happened to me if I didn't go to the specialist.

* I didn't know that my condition was serious.

* If my physician had told me that my condition was deadly, I would have gone to the specialist sooner.

* The physician never referred me.

* The physician never called me to see if I went to the specialist.

Were any of these claims successful?  The claim that the physician should have called the patient wasn't. That case involved a patient with an enlarged lymph node in her neck. Her primary physician referred her to an ENT, but she never went to the specialist.  By the time she returned to the referring physician nearly two years later, she had incurable tonsil cancer.  Although the plaintiff firmly believed that her physician should have called her to see if she had gone to the ENT, it's not the standard of care for physicians to do so.

The other claims had mixed success, depending on the physician's documentation.  Some examples of the types of documentation included the following.

* The weakest documentation included statements written in the chart, such as "Refer to Ortho" or "Refer to "Cardiologist."  Statements like these are common but vague.  Plaintiffs claimed that either the physician never told them to see a specialist or that the physician didn't provide them with enough information to see a specialist.

* Faxing and/or calling the referral were examples of other ways to make the referral.  The problem with calling and faxing was that the specialists receiving the referral had no charts for the patients.  Therefore, if the patients didn't contact those specialists, their offices discarded the information.  In addition, telephone and fax records were not always specific enough to support or refute whether the phone calls or faxes actually occurred.  If the referring physician spoke to someone in the specialist's office, documentation of the name was helpful to the defense.  For faxed referrals, a fax confirmation sheet included in the physician's chart was helpful to the defense. 

* Documentation such as "Refer to Dr. Bibner for Neuro exam" was much stronger.  This type of documentation assumes that the physician and patient discussed the referral as well as the reason for the referral.  

* Providing the patient with a prescription to a specific physician listing a specific reason is even stronger documentation.  For example, if the physician wanted to refer the patient to a glaucoma specialist for intraocular hypertension, the physician wrote, "Refer to Dr. Makoto for elevated IOP." 

* The strongest documentation included a copy of the prescription along with the notation that the physician discussed the referral with the patient and gave the prescription to the patient.

Were these claims of negligent referral successful?  The defense settled some of these cases for amounts ranging from modest amounts to hundreds of thousands.  Other cases were dismissed or went to trial and received a defense verdict.  The deciding factor was the quality of the documentation by the referring physician.

Want to learn more about LNC skills for legal nurse consultants? Check out the Archives.

...Katy Jones