Does liability for your patient continue after referral?

July 13, 2011

Does a primary care physician remain legally responsible for a patient after referral? The Delaware Superior Court recently determined the answer to be "No." As with all legal proceedings, however, it is important to discuss context.

The Delaware Superior Court ruled recently that a primary care physician (PCP) does not remain legally responsible for a patient after referring the patient to a specialist. As with all legal proceedings, however, context is important.

The case involved a patient referred by her PCP to an ear, nose, and throat specialist because of “recurring tonsillitis.” The specialist performed a tonsillectomy, and the next day the patient suffered a brain injury that left her with “significant” cognitive and physical defects. She sued her PCP and the specialist, alleging that the PCP negligently diagnosed and referred her, resulting in unnecessary surgery.

In its ruling, the court first noted that  “…whether a physician’s duty to his or her patient continues after the patient is referred to a specialist appears to be an issue of first impression in his jurisdiction.” However, the court said, other jurisdictions “decline to recognize a continuing duty” once a patient is referred to a specialist and the specialist exercises ‘independent” judgment.

The Delaware Supreme Court said the PCP’s referral was “legally inconsequential,” noting that the specialist did not rely upon the referring doctor’s impressions of the patient but made an “independent determination.” Once the specialist made that judgment about the patient’s condition and treatment, the referring PCP’s duty to the patient “extinguished,” the court said.

The Delaware Court referenced a Pennsylvania court’s determination that an operating surgeon’s independent decision during surgery severed the referring doctor’s duty to the surgeon’s decisions.

Legal commentary on the Delaware ruling noted that, to have ruled otherwise, would create disincentives for PCPs to refer patients to specialists.

See additional news items in the July 13, 2011 issue of eConsult.