The Physician's Duty to Refer to a Specialist
| Publication year | 1994 |
| Pages | 79 |
| Citation | Vol. 23 No. 1 Pg. 79 |
1994, January, Pg. 79. The Physician's Duty to Refer To a Specialist
In recent years, the general practitioner, or "family doctor," seems to have become an anachronism. As new physicians choose to enter specialty and subspecialty practices, the relative number of primary care practitioners has declined dramatically. However, this trend may change in the future in response to economic and social pressures favoring a return to "basics." Health care reformers, managed care programs and third-party payors almost universally favor placing treatment and utilization decisions in the hands of the primary care physician, as a "gatekeeper," and deemphasizing reliance on the often-costly services of specialists.
Despite increasing economic influences, physicians maintain primary responsibility for determining patient care. Physicians remain responsible for admitting or discharging patients from hospitals, ordering or performing diagnostic procedures and prescribing medications. Recent public and private efforts to analyze and ultimately control health care costs will undoubtedly affect physicians' treatment decisions, including the decision to refer a patient to more specialized health care entities or providers. This article focuses on several of the medical-legal issues surrounding patient referral, including the circumstances giving rise to a duty to refer, duties of disclosure and potential liability for negligent referral.
Under Colorado law, the duties of physicians in caring for patients are generally governed by standards of conduct of physicians similarly situated. A physician has a duty to use reasonable knowledge, skill and care in diagnosing and treating the patient.(fn1) The doctor's conduct will be measured against that of a reasonable physician, practicing in the same field of practice or specialty, at the same time and under the same or similar circumstances.(fn2) Although the physician's duty to refer has not been addressed in great detail by Colorado's appellate courts, such duty can ordinarily be expected to arise when management of the patient's condition exceeds the competence of the attending physician, or when it becomes reasonably apparent that the patient would be likely to benefit from evaluation or treatment by a specialist.(fn3)
In the 1896 case of Jones v. Vroom,(fn4) one of only two reported Colorado cases addressing liability for failure to refer, the Court of Appeals suggested that a duty to refer may arise only when the subject of referral is within the scope of the condition for which the attending physician is treating the patient and will not extend to unrelated conditions or complaints.(fn5) In Jones, a patient engaged two physicians to treat her typhoid fever. During the course of her treatment, the patient developed pain in her eye and requested one of the defendants to refer her to an eye specialist. The physician assured her that he would make the referral, but failed to carry through. The patient ultimately lost sight in the affected eye.
In affirming dismissal of the case despite the physician's promise to refer, the Court of Appeals noted that the patient had employed the physicians to treat her only for typhoid fever, and held that "their employment imposed no duty upon them to provide her with a specialist for her eye."(fn6) The court also was persuaded by the fact that the patient was aware that her eye problem needed a specialist's treatment and that she ultimately engaged a specialist on her own:
She seems to have had no difficulty in procuring [a specialist] when she set about it, and presumably he could have been gotten just as readily at first.(fn7)
The Vroom court may well have ruled differently if the medical problem or need for specialty treatment had not been so readily apparent to the patient. Moreover, as current theories of professional liability tend to emphasize tort-based "reasonable care" theories over purely contractual analysis,(fn8) the vitality of Vroom's "scope of treatment" limitation is uncertain under current law. If expert testimony indicates that standards of reasonable care require referral, the fact that the subject of referral fell outside the technical scope of the physician's treatment may not be sufficient grounds for dismissal of the complaint as a matter of law.
In Salazar v. Ehmann,(fn9) a more recent pronouncement from the Court of Appeals, a chiropractor was found liable for
failing to take x-rays and failing to...
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