Malpractice Consult

Your liability if a referral doctor goofs

Q: I diagnosed a patient with cancer and referred her to an ob/gynfor a total hysterectomy. He botched the operation, cutting a ureter andfailing to sample surrounding lymph nodes. The patient sued the surgeon,his assistant, the hospital, and me for making a negligent referral. ButI'm not responsible for the operation. Shouldn't I be dismissed from thecase?

A: You probably will be, but it may take some time. You may have to testifyat a deposition before the plaintiff's attorney or a judge will dismissyou from the case.

In general, you're correct that physicians are responsible for theirown actions only. Courts have typically held that the mere referral of apatient is insufficient to create liability on the part of the referringdoctor. The same principle usually applies when a patient sues a physicianbecause of the negligent acts of a covering or on-call colleague.

However there are some conditions and exceptions. Did you select a specialistyou had reason to believe wasn't competent or didn't possess the neededskills or training? If so, a jury might conclude that you placed your patientin harm's way, and you could be held liable for "negligent referral."Likewise, your selection of the specialist must be appropriate to the patient'scondition. Choosing a gynecologist who wasn't experienced with cancer cases,for example, could create a liability problem for you.

There may be times when you'll be required to refer a patient to a doctoryou don't know, say from a list of approved specialists from a managed careplan. While you could still be sued, your liability would be limited ifyou followed the plan's procedures and made the referral in good faith thatthe specialist was properly trained to treat the patient's condition.

You also have an obligation to inform the specialist of any special circumstancesinvolving your patients. And you have to see to it that he has access toappropriate medical records. You should also follow up with the patientto make sure that she knows why it's important to see the specialist, andthat she actually does so.

In some cases, primary care physicians have been held liable for thetreating specialist's failure to obtain proper informed consent. That'swhat happened to an internist who had referred a longtime patient for cardiacsurgery. Because he had followed the patient during and after the procedure,an appeals court ruled that he had to face a trial. A jury could reasonablyconclude that the internist might have been aware of risks of cardiac surgeryfor that particular patient, said the court.

In another case, a patient's gastroenterologist had referred him to asurgeon, who removed his colon and rectum. The patient became impotent andsued both the surgeon and the referring doctor for failing to secure properinformed consent. But a judge dismissed the gastroenterologist from thecase.

Why? That physician didn't have an ongoing relationship with the patient,who had been referred to him by the man's family doctor. The specialistexamined him only once before referring him to a surgeon. There was no planto follow the patient. Therefore, the gastroenterologist's degree of participationin the man's care was so episodic that he couldn't be held accountable forsecuring informed consent. The responsibility belonged to the surgeon alone.

If you have sufficient information about a recommended procedure andif you intend to stay involved in the patient's treatment, it's advisableto have your own informed consent discussion with the patient.

How triage nurses should handle emergencies

Q: My family practice group contracts with an on-call nurse triageservice for when the office is closed. If a patient has an emergency, shouldthe nurse simply tell him to call 911, or should she dial the number herselfon the patient's behalf?

A: She should dial it herself. If the nurse believes there's an emergency,she should tell the patient, "Please stay on the line while I contact911 for you." That will help ensure that the patient receives promptattention. Patients may become so distressed during a crisis that they failto call, or may provide incomplete information to the police.

The nurse should document her efforts and contact you as soon as possible.Then you should contact the ER to provide any necessary history, relay specialconcerns, and arrange for a follow-up office visit if the patient is goingto be discharged soon.

But make sure you haven't neglected this important preliminary step:Seeing to it that the nurses have received appropriate training and writtenguidelines about what they can handle by themselves, when they need to contactthe physician, and when they should tell the patient to get to an emergencyroom--fast.

This department, prepared by the assistant vice president, risk man-agement,Frontier HealthCare of White Plains, NY, answers common pro-fessional-liabilityquestions. It isn't intended to provide specific legal advice. If you havea question, please submit it to Malpractice Consult, Medical Economicsmagazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax yourquestion to 201-722-2688 or send it via e-mail to memalp@medec.com

By Lee J. Johnson, JD

Lee Johnson. Malpractice Consult.

Medical Economics

1999;16:106.