Referrals and liability: What primary care physicians need to know

Primary care physicians (PCPs) often refer patients to specialists when they face a complicated or perplexing diagnosis, or one that is beyond their purview. But is that always the right decision for the patient? Some experts say that it absolutely is, but others say knowing the patient is more valuable than being an expert in one specific area.

An additional element of the question is the fear of malpractice allegations for a referral, or lack of one. 

Referrals are a growing issue in the United States. A study published in 2012 in the Archives of Internal
Medicine showed that the incidence of  physicians referring patients to other physicians nearly doubled from 1999 to 2009, growing from 4.8% to 9.3%. That represents a jump from 40.6 million referrals annually to 105 million.

Know thy patient

Richard Roberts, MD, JD, a past president of the American Academy of Family Physicians, says that in his Madison, Wisconsin practice, caring for multiple generations in some families gives him unique insights into what may be going on with a patient. “Knowing the person is way more important than knowing the disease,” he says.

PCPs should be confident they are doing well by their patients, he says.

 “I refer when needed, of course, but we can probably manage 90 to 95 percent of what comes in the door,” he says. “If you are sending out more than 5 to 10 percent of your patients, you are probably referring out too much.” 

He cites statistics that reinforce his belief that PCPs can handle many conditions on their own.  

“If you take a population of 10,000 people and increase the number of specialists in that population by 1 per 10,000 people, the death rate goes up 2%. If you increase it by a combination of primary care providers-internal medicine, pediatricians, and family medicine-by that amount, the death rate goes down 5%. If you add family doctors alone, the death rate goes down 9%,” Roberts says. “Doing more is not always doing better. Doing more can sometimes mean someone gets hurt.”

For example, he says, about one-third of all medical procedures done in the U.S. are unnecessary by each specialty’s own criteria. Specialists don’t perform unnecessary procedures out of greed or poor skills. Most sincerely want to help their patients, he says, but compares it to asking a mechanic to fix a noise in your car. 

“The mechanic will lift the hood and start tinkering with the engine even if it’s the radio that’s making the noise because he doesn’t do radios, he does engines,” he says.

NEXT PAGE: A requirement to refer?

However, Ann Whitehead, RN, JD, vice president, risk management & patient safety for the Cooperative of American Physicians, Inc., a physician-owned organization offering medical professional liability protection, cautions that failure to refer can sometimes result in litigation.

“Physicians are very much aware of (the potential for lawsuits) and know they should work within the bounds of whatever their practice parameters are,” she says. “PCPs are usually generalists and overseers of care. They provide preventive care and routine treatment, but if the issue related to the patient’s illness is outside their specialty, it is almost required that they refer them out.” 

Whitehead predicts that as medicine becomes more complex, referrals to specialists will continue to increase. 

“Most PCPs allot 15 minutes to see a patient. That is not enough time to fully assess a patient with multiple different diagnostic problems. They might identify those problems and then refer out to a specialist to take care of them,” she says.

Documenting your rationale

Whitehead says there is little liability risk in referring to a specialist. Unless the PCP knows the specialist is somehow incompetent, he or she is generally only liable for the care they deliver or oversee directly. Even sending a patient to the “wrong” specialist carries little risk, she adds.

“It all comes down to the physician’s examination and documentation in the medical record for why they are providing that referral,” she says. If the differential diagnosis shows it’s justified, then the physician has done the right thing.  

“This is not an exact science. Specialists are there to rule something in or out,” she says. “If you have five things on your differential diagnosis for this patient and two of them are not really within the realm of your practice, and you think they are significant, then you need to document in your records why you are referring, what you have explained to the patient, and that it is important they get that consultation with the specialist.” 

Given the current reimbursement environment, “it is a no-lose situation now for a PCP to refer to a specialist,” she adds.

NEXT PAGE: Managing the referral decision

Roberts says he generally follows a “rule of three”: If he hasn’t figured out a patient’s problem within three visits, he seeks help, either from a colleague in his office or an outside referral.

Part of his rationale is that about 40% of conditions cannot be categorized at the initial presentation. Over time, however, the condition may become clearer. Often that is the time frame in which the patient is seeing the specialist, making it easier for him or her to diagnose.

But he notes that specialists aren’t always able to provide answers either, which can be reassuring in a way. For example, he has a 71-year-old active patient who couldn’t straighten his elbow. The patient had seen two specialists and received conflicting advice about what to do. Roberts was able to tell him to go ahead with surgery since he knew him to be an active person who wouldn’t be happy leading a sedentary life. 

“That happens all the time,” he says. “Specialists often think they are the final word, but patients come back to me every day to decide what to do.”

When you do refer

Kenneth T. Hertz, FACMPE, principal in the Medical Group Management Association, says that who you refer to is very important. In general, PCPs make referrals to physicians who are in the same networks or with whom they have a relationship. 

If a specialist delivers poor care to your patient or doesn’t send you a note afterward, stop referring to that person. Hopefully, he or she will notice and ask why. Respond with an honest, specific answer if that happens, he suggests.

Since it is incumbent upon PCPs to be sure they get notes back from the specialist, Hertz advises they have a system to track this, possibly through their electronic health records. And once they receive the notes, it is equally important to review them. 

“Liability arises if you don’t read or respond appropriately,” he says. “Not only that, but it’s just good medicine.”

Roberts cautions PCPs to be aware of who referred patients are actually seeing. Is it the physician you recommended or a nurse practitioner? He calls to complain to the specialist if he or she doesn’t see the patients themselves.  

“Don’t assume they have an evil intent if they don’t act how you would like for them to. They may just be very busy, but that doesn’t mean you shouldn’t let them know your preferences,” he says. 

Insurance restrictions may limit who you can refer to, but don’t hesitate to appeal a restriction if no one on the “approved” list is right for your patient, he adds.

NEXT PAGE: Dealing with non-compliant patients

You can refer a patient to a specialist, but you cannot force the patient to go. Thoroughly documenting the referral protects you from liability.

“If they have made the referral and explained to the patient why they are making it and documented that, it’s really the patient’s responsibility to make the appointment and follow up with the doctor,” says Whitehead. 

Next time you see the patient in your office, ask why he or she didn’t see the specialist and document the answer, she adds. This “closes the loop” on the referral. 

Hertz advises that when a patient’s problem is urgent, someone on your staff should set up an appointment with the specialist while the patient is still in your office. If the  problem is important but not critical, your office can provide the names of several potential specialists and let the patient choose which one to see.