Negligent referral is a type of allegation that might be used in dental malpractice lawsuits. This allegation attempts to impose liability on the referring doctor for a poor outcome that may have been associated with work performed by a specialist. Adequate documentation may help prevent or defuse a negligent referral allegation.
Case Example
Dr. A is a family dentist who regularly treats all members of the Green Family, with the exception of Mr. Green who makes dental appointments only when he is in pain. In this case, Mr. Green contacted Dr. A at home on a Saturday morning complaining of pain, and Dr. A agreed to see him at the office.
Upon examining and X-raying the problematic tooth, Dr. A noted that the root was wrapped around a portion of Mr. Green’s jaw. Unwilling to take on this complicated case, Dr. A referred Mr. Green to a local oral surgeon, Dr. B, who was able to squeeze Mr. Green into his Monday appointment schedule.
The tooth was extracted, and Mr. Green sustained numbness, pain, and swelling, as well as a drug-resistant infection that required several rounds of antibiotics. Six months later, when the infection had finally subsided and most of the numbness had resolved, Mr. Green sued both dentists — Dr. B for negligent performance of a clinical procedure and Dr. A for negligent referral (meaning that Dr. A had referred his patient to an incompetent “expert”).
Resolution
In his (here edited) notes for the Saturday appointment with Mr. Green, Dr. A had written:
Told pt. that the tooth is cracked and needs extraction. Roots are wrapped around XXX; explained the risk and offered referral: he can select his own oral surgeon, call his insurance company, or accept referral to Dr. B, an OS other pts. have reported they like. Pt. has opted to see Dr. B, and we will contact his office. Warned pt., generally, of risks associated with extraction XXX, and he has acknowledged that he understands risk of numbness, infection, temporary pain, and swelling.
On the basis of this documentation, the judge dismissed the action against Dr. A, noting that the patient had been given choices and that he had elected to see Dr. B. The judge also noted that both Dr. A and Dr. B had warned Mr. Green of the risks associated with the extraction and that Mr. Green had signed an informed consent before the extraction acknowledging that he understood these risks.
Risk Tips
It’s always a good idea to document that a patient has been given referral choices, particularly if the doctor has a preference as to which of several local specialists he refers patients.
As in the case of Dr. A, asking a patient to confer with his or her insurance company — or with a local referral service — makes it clear that financial gain isn’t the referring doctor’s primary purpose. At the same time, the referring doctor may want to avoid making referrals to someone he doesn’t know at all or, worse yet, someone who has been unsatisfactory in the past.
From a clinical perspective, the referral process really is all about helping the patient access the services of a competent specialist. From a risk management perspective, this includes avoidance of a negligent referral. Further, the referring doctor wants to avoid the possibility of being accused of unfair criticism of a specialist’s work.
So, what types of conversations should referring dentists be prepared to have with patients? Here are several examples:
- I haven’t referred anyone to Dr. W in quite a while. Dentists don’t always have the same practice policies or treatment recommendations, and that doesn’t make either one “wrong”; it’s just usually better for our patients when the dentists agree on a course of treatment.
- Many of my patients have told me that they’re very satisfied with Dr. Y, so I’ve started referring patients to his practice.
- I’m lucky because several good specialists practice in this area. I’ve used Drs. X and Y — and received good feedback from my patients. Do you have any questions? That might help us decide which doctor you’d prefer — or, please let me know if you’d rather see someone else.
- In the past, Dr. Z and I haven’t always agreed about how aggressively to treat a particular condition. I tend to be a little more conservative in my approach, but seeking other opinions might help you decide if you would rather have a more aggressive treatment plan.
- To help you feel more comfortable about this decision, it might be a good idea if you get a couple of opinions before making up your mind. That way, you’ll have all of your questions answered before you make a final decision, and you and I can make sure we’re on the same page.
When possible, the patient should be included as an active participant in the decision making process. This includes asking the patient if he or she has any particular questions or concerns about seeing a specialist.
Dentists also should be prepared to respond appropriately to a patient who balks at the idea of a referral; rather, the patient requests that the treating provider performs the procedure or treatment. Often, such patients are convinced that the cost will be substantially lower if they can avoid specialists. Generally, they don’t understand the potential seriousness of their case.
Further, if their current dentists were to treat them, and the outcome was less than stellar, they might sue for failure to refer. Education and documentation can help reduce the risks in these interactions.
Conclusion
Every dentist should have a clear policy about referring patients. A few things to think about might include:
- Am I qualified to perform this procedure/treatment?
- Is this patient a candidate for the procedures/treatments I provide?
- Do I have sufficient information to determine that I can provide a satisfactory outcome for this individual?
Explaining the rationale for a treatment recommendation so that it emphasizes the doctor’s desire to help the patient have the best possible results is important. Although the patient plays a role in the referral process, the dentist ultimately decides whether the patient should be referred. The patient either accepts this advice or is free to seek a different opinion from another dentist. Discussion and documentation are the best ways to avoid allegations that the referral process harmed a patient. This article was produced by the clinical risk management team at Medical Protective, the nation’s oldest professional liability insurance company dedicated to the healthcare professions.
Source: The Medical Protective Company