By Miranda Crowell

The only real valuable thing is intuition. – Albert Einstein

Painting the Scene

Picture this: a patient comes to your general practice doctor’s office. Your staff has already completed the appropriate patient intake procedures, and the patient is waiting for you in room number three. You walk in with a smile, and after two minutes of small talk and a brief review of the patient’s medical history, you get down to brass tacks. The tests do not look great and you have your eye on some alarming signs of early stage cancer. Recognizing that the patient’s symptoms may be a little out of your normal scope of practice, you send your patient off to a specialist. However, the patient fails to make an appointment with the specialist, and a few follow up phone calls to check in on your patient turn out to be fruitless. Even though caring for that patient was always your priority, you unfortunately find yourself being sued for malpractice one year later.

The Realities

The scenario described above may seem like a reel from every doctor’s nightmares, but the truth is that this situation can too easily become a reality. At first blush, it seems as though the general practice doctor did everything correct. All the boxes were checked…right? Let’s take a look, step by step.

First, a general practitioner doesn’t just refer a patient to a specialist because he or she thinks it is a good idea; a general practitioner actually has a “duty” to refer in certain instances. In a medical malpractice case out of Minnesota, a general practitioner chose to treat a patient’s wrist fracture instead of sending the patient out for a referral. The Minnesota Supreme Court stated that a general practitioner has an obligation to refer a patient to a specialist if “a practitioner discovers, or should know or discover, that the patient’s ailment is beyond his knowledge or technical skill.” Larsen v. Yelle, 246 N.W.2d 841, 845 (Minn. S.C. 1976).  Each state may describe this duty somewhat differently, but each variance is rooted in the same fundamental concept: referring a patient is the right choice if the doctor feels that the problem is beyond the scope of his practice. Furthermore, a doctor cannot make a referral on a leisurely timeline; one court found that a doctor breached the standard of care for waiting just two-and-a-half days to refer out a paintball injury! Erickson v. Waller, 569 P.2d 1372 (Ariz. App. Div. 1 1977).

Once the referral is made, the referring doctor’s job is not over. Susan Shepard, director of safety education for The Doctors Company, says that the number one malpractice allegation in small- to medium-sized practices is failure to diagnose or delayed diagnosis. Of course, there are a million different circumstances that can lead to this tort allegation, but the scenario described above may apply if the patient can show a failure to properly track or follow up on a medical test, or a failure to follow up regarding missed appointments. As Jeff Brunker, president and chairman of the board of The MGIS Companies, Inc. stated in Avoiding Common Malpractice Pitfalls, it is not uncommon for a patient to fail to adhere to follow up recommendations, whether it be a referral or otherwise. Thus, Bunker recommends a “very bulletproof process for follow up and . . . [making] every effort to follow up with the patient, order the correct test, and basically chase down the patient.” A doctor’s intuition really pays off in this area: a doctor should be encouraged to reach out to the patient in the manner which he/she anticipates the best response. For instance, if a patient has a reputation for missing appointments, then that patient may need a few extra reminders to make it to the referred doctor’s office. Some patient management technologies have implemented automated reminders that can be helpful, but there is always a risk that an automated message will be ignored. Other options include phone calls, text messages, etc. And most importantly, do not forget to document your efforts.

Of course, no mitigation strategy is foolproof.  However, taking some minor precautions in the areas of patient management can help ensure the efficacy of any particular strategy. For starters, the referring office can schedule follow-up appointments or referrals at the point of care. Second, a physician should ensure that the patient knows the importance of the follow-up advice; such serious business should not be taken lightly!

In the case where an actual referral is made, the relationship between the referring doctor and the consulting doctor can also play a role in guiding the actions of the referring doctor. In most instances, a doctor who simply advises a patient to see a specialist is not liable for negligence committed by the recommended physician. However, this is not necessarily true where there is a showing of a partnership or employment relationship between the physicians. (The specifics of this relationship are beyond the scope of this post.)

Another likely circumstance is that the patient does attend a referral appointment. Then what? Someone, often the referring physician, must assume a care-coordination role. Proper care coordination can decrease the risk of negligence and, not to mention, ensure that the patient’s condition has the best chance of success. HealthIT.gov notes that one way to assist in the coordination role is the use of electronic medical records. Electronic referral software is another. (For more on HeathIT.gov’s advice on health information exchange, click here.)

Conclusion

Poor patient-management can lead to allegations of medical malpractice, and a responsible, well-organized doctor’s office should create systems to mitigate its susceptibility to such claims. As noted, some ways to avoid problems down the road could include patient education, persistent follow-ups, and proper documentation of physician follow-up and coordinated-care efforts. Process improvement and risk management are just a few strategies to assist in the patient referral process.

Nothing in this post should be construed as legal advice.