- Email: [email protected]
Patient referrals
PRACTICE STRATEGIES
ILecral issues
I
Patient referrals Lance R. Plunkett ne area of optometric practice that is growing is the referral of patients to specialists. As optometrists increasingly provide the bulk of primary eye care in the United States, referrals to specialists - either other optometrists or ophthalmologists become more common for optometrists to make. For the protection of the optometrist making the referral, and the optometrist who may receive a referral, it may be helpful to review the law in this area. Optometrists should not attempt to perform treatments they are not competent to perform. Op-
-
8
.-:
ith referral of patients increasingly common, both the primary care practitioners who refer patients and the specialists to whom patients are referred should be familiar with the law , ':? pertinent to this aspect of eye care. L ), < 1 _ ,A :L~,&: ;&v.
I
-?g
-
tometrists need to exercise realistic professional judgment about the scope of their training and experience when it comes to choosing any treatment. Therefore, choosing when to make a referral to a specialist is the responsibility of the individual optometrist. Aside from exercising sound professional judgment as to when and under what circumstances to make a referral to a specialist, the referring optometrist must guard against making a negligent referral. This means the referring optometrist has to exercise reasonable care under the circumstances to refer the patient to a competent, qualified individual. It is always advisable to give the patient a choice of specialists, rather than just one name. Referring the patient to a person who is not a genuine Lance R. Plunkett, J.D., is the AOA counsel and director of the AOA State Government Relations Center. The views expressed are those o f the author and do not necessarily reflect the views of the American Optometric Association.
V O L U M E 7 5 l N U M B E R 91SEPTEMBER 2004
specialist, or a person with a known history of poor practice, can be deemed to be negligence on the part of the referring optometrist. This problem may sometimes be exacerbated in managed care situations if a managed care plan limits referrals to only a specified individual or specified groups of specialists. If the referring optometrist knows that these "plan" individuals are not good practitioners, then a referral to them can be a negligent act, for which the referring optometrist may ultimately be found liable. Making the referral merely because the specialists are participants in the plan would not excuse the referring optometrist from having made a negligent referral. The courts do not yet accept an "insurance plan made me do it" defense, although it has actually been much talked about by attorneys. It should be noted that liability for a negligent referral is relatively rare. Most referring optometrists have adequate knowledge of the specialists they refer to and can reasonably and safely rely on this knowledge. In addition, the test for legal liability on a claim involving negligent referral is not that the referring optometrist is held to ensuring or guaranteeing the competence or credentials of the specialist, but only that the referring optometrist acted reasonably in making the referral based on the circumstances. While the referring optometrist cannot make a referral to a specialist out of total ignorance, neither is the optometrist required to investigate like Sherlock Holmes when assessing to whom the patient will be referred. The reasonable middle ground is the standard to which the law will hold the optometrist. If there are any doubts about a referral to a particular specialist, a referral should not be made, or at least some research should be conducted before the referral is made. Once the referral to a specialist is made, the referring optometrist should take care to follow the progress of the patient. The referring optometrist should make certain that the specialist is provided complete and accurate information about the patient's medical history and condition prior to the referral. It is not proper or wise to view the specialist as a dumping ground for a problem patient, or as a means to avoid the referring doctor's appropriate exOPTOMETRY
PRACTICE STRATEGIES
ercise of professional judgment. For example, do not contact a specialist allegedly to make a referral but really just to seek advice so as to document in your own record that you prescribed something or carried out a treatment or procedure because the specialist told you to do so. This gimmick will not protect the treating optometrist if the treatment or prescription turns out to be inappropriate or the procedure is performed improperly. Liability for the treatment carried out cannot be passed off to the specialistin this way. In addition, it certainly will not improve your standing in the community of specialists if they learn that you are engaging in this tactic. In fact, most specialists will no longer give such advice without first examining the patient themselves. This is wise, since it eliminates the danger of another doctor misstating or misusing the specialist's advice. Once having examined the patient, the specialist can make his or her own formal patient record, accurately setting forth any diagnosis, advice, and/or treatment plan. Once the referral is made, responsibility for proper treatment of the patient reverts to the specialist. Except in the extremely rare circumstance in which it can be reasonably ascertained that it would cause harm to the patient, the specialist should always communicate appropriate diagnostic and treatment information back to the optometrist who referred the patient. In that way, there can be no misunderstanding of the patient's further treatment needs by either doctor. While it is advisable to clearly and accurately communicate the aforementioned diagnostic and treatment information to the referring optometrist, there is no legal obligation to send the patient back to the referring optometrist. Patients are always free to choose the doctor they wish to go to, and they are not compelled to return to the referring optometrist. In fact, specialists can expose themselves to potential malpractice liability by referring a patient back to an optometrist whom the specialist knows treated the patient negligently or incompetently. The specialist should always inform a patient accurately and appropriately about any need for follow-up care, and make whatever recommendation, based on sound professional judgment, that would be in the patient's best interests. A specialist should never disparage a referring optometrist's work. If a patient needs to be told about
perceived clinical deficiencies in the referring optometrist's treatment, the information should be provided in a factual, accurate, non-inflammatory manner. The specialist should also advise the referring optometrist about any perceived deficiencies. Both the referring optometrist and the specialist need to keep in mind that the only issues are: what is the appropriate diagnosis and treatment for the patient, and what course of action will best serve the patient's eye and vision health. very often problems arise between referring optometrists and specialistsbecause the patient's best interests are forgotten and are replaced with issues of angerzit having a diagnosis or treatment questioned, haggling over who the patient really belongs to, or worrying too much about not offending another doctor personally. While it is always best for the referring optometrist and the specialist to have a cordial relationship (outright antagonism is rarely helpful to any situation), it is far more important to maintain a professional relationship that is not subject to the vagaries of personal emotion. In that way, necessary negative as well as positive information can be shared for the overall benefit of the patient. Finally, it should be kept in mind that it is always problematic to pay fees for referrals. Not only do many states specifically outlaw this as professional misconduct, it is always a bad idea in that it makes it virtually impossible to defend against a negligent referral claim if the patient can point out that the referral was prearranged and had a financial motivation. A jury will be unlikely to see beyond that fact to any justification offered. And in Federal programs like Medicare or Medicaid, legal problems would arise under the Antikickback Statute (some states also have their own "mini-Antikickback Statutes" that apply even to private insurance plans). No referring optometrist or specialist should open the door to such risks by paying fees for referrals. And be aware that "fees" for referrals do not have to be in the form of cash to be a problem - many other types of legal consideration are deemed to be the equivalent of a cash fee. Always consult with a knowledgeable attorney before entering into any arrangement under which your patients are referred to another doctor.
It is to give the patient a choice o f specialists, rather than just one name.
OPTOMETRY
VOLUME 75lNUMBER 91SEPTEMBER 2004
ILecral issues
I
Patient referrals Lance R. Plunkett ne area of optometric practice that is growing is the referral of patients to specialists. As optometrists increasingly provide the bulk of primary eye care in the United States, referrals to specialists - either other optometrists or ophthalmologists become more common for optometrists to make. For the protection of the optometrist making the referral, and the optometrist who may receive a referral, it may be helpful to review the law in this area. Optometrists should not attempt to perform treatments they are not competent to perform. Op-
-
8
.-:
ith referral of patients increasingly common, both the primary care practitioners who refer patients and the specialists to whom patients are referred should be familiar with the law , ':? pertinent to this aspect of eye care. L ), < 1 _ ,A :L~,&: ;&v.
I
-?g
-
tometrists need to exercise realistic professional judgment about the scope of their training and experience when it comes to choosing any treatment. Therefore, choosing when to make a referral to a specialist is the responsibility of the individual optometrist. Aside from exercising sound professional judgment as to when and under what circumstances to make a referral to a specialist, the referring optometrist must guard against making a negligent referral. This means the referring optometrist has to exercise reasonable care under the circumstances to refer the patient to a competent, qualified individual. It is always advisable to give the patient a choice of specialists, rather than just one name. Referring the patient to a person who is not a genuine Lance R. Plunkett, J.D., is the AOA counsel and director of the AOA State Government Relations Center. The views expressed are those o f the author and do not necessarily reflect the views of the American Optometric Association.
V O L U M E 7 5 l N U M B E R 91SEPTEMBER 2004
specialist, or a person with a known history of poor practice, can be deemed to be negligence on the part of the referring optometrist. This problem may sometimes be exacerbated in managed care situations if a managed care plan limits referrals to only a specified individual or specified groups of specialists. If the referring optometrist knows that these "plan" individuals are not good practitioners, then a referral to them can be a negligent act, for which the referring optometrist may ultimately be found liable. Making the referral merely because the specialists are participants in the plan would not excuse the referring optometrist from having made a negligent referral. The courts do not yet accept an "insurance plan made me do it" defense, although it has actually been much talked about by attorneys. It should be noted that liability for a negligent referral is relatively rare. Most referring optometrists have adequate knowledge of the specialists they refer to and can reasonably and safely rely on this knowledge. In addition, the test for legal liability on a claim involving negligent referral is not that the referring optometrist is held to ensuring or guaranteeing the competence or credentials of the specialist, but only that the referring optometrist acted reasonably in making the referral based on the circumstances. While the referring optometrist cannot make a referral to a specialist out of total ignorance, neither is the optometrist required to investigate like Sherlock Holmes when assessing to whom the patient will be referred. The reasonable middle ground is the standard to which the law will hold the optometrist. If there are any doubts about a referral to a particular specialist, a referral should not be made, or at least some research should be conducted before the referral is made. Once the referral to a specialist is made, the referring optometrist should take care to follow the progress of the patient. The referring optometrist should make certain that the specialist is provided complete and accurate information about the patient's medical history and condition prior to the referral. It is not proper or wise to view the specialist as a dumping ground for a problem patient, or as a means to avoid the referring doctor's appropriate exOPTOMETRY
PRACTICE STRATEGIES
ercise of professional judgment. For example, do not contact a specialist allegedly to make a referral but really just to seek advice so as to document in your own record that you prescribed something or carried out a treatment or procedure because the specialist told you to do so. This gimmick will not protect the treating optometrist if the treatment or prescription turns out to be inappropriate or the procedure is performed improperly. Liability for the treatment carried out cannot be passed off to the specialistin this way. In addition, it certainly will not improve your standing in the community of specialists if they learn that you are engaging in this tactic. In fact, most specialists will no longer give such advice without first examining the patient themselves. This is wise, since it eliminates the danger of another doctor misstating or misusing the specialist's advice. Once having examined the patient, the specialist can make his or her own formal patient record, accurately setting forth any diagnosis, advice, and/or treatment plan. Once the referral is made, responsibility for proper treatment of the patient reverts to the specialist. Except in the extremely rare circumstance in which it can be reasonably ascertained that it would cause harm to the patient, the specialist should always communicate appropriate diagnostic and treatment information back to the optometrist who referred the patient. In that way, there can be no misunderstanding of the patient's further treatment needs by either doctor. While it is advisable to clearly and accurately communicate the aforementioned diagnostic and treatment information to the referring optometrist, there is no legal obligation to send the patient back to the referring optometrist. Patients are always free to choose the doctor they wish to go to, and they are not compelled to return to the referring optometrist. In fact, specialists can expose themselves to potential malpractice liability by referring a patient back to an optometrist whom the specialist knows treated the patient negligently or incompetently. The specialist should always inform a patient accurately and appropriately about any need for follow-up care, and make whatever recommendation, based on sound professional judgment, that would be in the patient's best interests. A specialist should never disparage a referring optometrist's work. If a patient needs to be told about
perceived clinical deficiencies in the referring optometrist's treatment, the information should be provided in a factual, accurate, non-inflammatory manner. The specialist should also advise the referring optometrist about any perceived deficiencies. Both the referring optometrist and the specialist need to keep in mind that the only issues are: what is the appropriate diagnosis and treatment for the patient, and what course of action will best serve the patient's eye and vision health. very often problems arise between referring optometrists and specialistsbecause the patient's best interests are forgotten and are replaced with issues of angerzit having a diagnosis or treatment questioned, haggling over who the patient really belongs to, or worrying too much about not offending another doctor personally. While it is always best for the referring optometrist and the specialist to have a cordial relationship (outright antagonism is rarely helpful to any situation), it is far more important to maintain a professional relationship that is not subject to the vagaries of personal emotion. In that way, necessary negative as well as positive information can be shared for the overall benefit of the patient. Finally, it should be kept in mind that it is always problematic to pay fees for referrals. Not only do many states specifically outlaw this as professional misconduct, it is always a bad idea in that it makes it virtually impossible to defend against a negligent referral claim if the patient can point out that the referral was prearranged and had a financial motivation. A jury will be unlikely to see beyond that fact to any justification offered. And in Federal programs like Medicare or Medicaid, legal problems would arise under the Antikickback Statute (some states also have their own "mini-Antikickback Statutes" that apply even to private insurance plans). No referring optometrist or specialist should open the door to such risks by paying fees for referrals. And be aware that "fees" for referrals do not have to be in the form of cash to be a problem - many other types of legal consideration are deemed to be the equivalent of a cash fee. Always consult with a knowledgeable attorney before entering into any arrangement under which your patients are referred to another doctor.
It is to give the patient a choice o f specialists, rather than just one name.
OPTOMETRY
VOLUME 75lNUMBER 91SEPTEMBER 2004