Malpractice Consult

By Lee J. Johnson, JD

Stress test responsibilities

•  Don't practice beyond your area of expertise.

• Keep your insurer informed of new procedures you perform.

• You may be liable for the referral physicians you choose.

Q: As a cardiologist, I perform about 500 stress tests a year on patients referred by primary care physicians. My hospital wants me to train some of these doctors to do the procedure themselves. Whether or not we do that, who is responsible for clearing the patient for the test, and obtaining informed consent? How are liability issues decided?

A: The hospital should rethink its plan. Any primary care doctor who performs a stress test would be held to the same standard of care as a cardiologist. In a malpractice trial, experts would testify about what a "reasonable" cardiologist would do in similar circumstances. The fact that a generalist doesn't have the same training as a cardiologist won't be an excuse if something goes wrong. In fact, the jury may be more suspicious of the primary doctor since the plaintiffs' attorney will surely argue that he was practicing beyond his area of expertise.

Any primary care physician who agrees to do stress tests should notify his insurance company because cardiac procedures may be considered a different risk class, and may be subject to higher rates. Failure to notify the carrier could result in a denial of coverage.

You could have liability as well if it were determined that your training of the primary doctors was so diluted as to fall below the prevailing standard of care.

The old adage "see one, do one, teach one" is dangerous in this scenario. A plaintiffs' attorney would argue that you should have monitored the primary care physician's activities. But does that mean being on call? Reviewing the doctor's charts? You don't want questions like those to be answered in court.

There's another important question that needs resolution when you're the one who's doing the stress tests: Is the primary care physician seeking a consult, or sending you a referral? The distinction can be important. A doctor who calls in a consult maintains primary responsibility for the patient. But if it's a referral, his level of responsibility is lower; he's mainly responsible for the selection of the specialist. "Negligent referral" occurs when he chooses someone who is in the wrong specialty, has inadequate training, or is known or should be known to be incompetent.

Whether it's a consult or referral, the selection of appropriate patients and medical clearance is a joint responsibility. The primary doctor who recommends a stress test must determine that the patient is fit to undergo it.

But once the patient is in your office, you must make an independent evaluation about whether to proceed. If a patient arrests on the treadmill, both you and the referring physician will be named in any lawsuit. Distribution of liability will depend on when the warning signs and symptoms presented themselves.

In most states, both physicians also have the responsibility of obtaining informed consent, especially if the primary physician has some degree of participation in recommending the procedure or following the patient afterwards. Each doctor should have a consent conversation with the patient, and have a separate form signed. In the event of a lawsuit for lack of informed consent, both physicians will probably be sued. But as long as one of you did an adequate job of telling the patient about risk, benefits, and alternatives, then both of you can probably win the case on that issue.

Lee Johnson. Malpractice Consult: Stress test responsibilities.

Medical Economics

May 23, 2003;80:94.