MEDICAL MALPRACTICE AND PERSONAL INJURY LAW BLOG

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My Doctor Gave Me the Wrong Referral – Can I Sue?

If you go to see your doctor for a medical issue that should be handled by another medical professional, your doctor should refer you to a specialist. A specialist has the specific education, training, and experience to deal with specific health concerns and can provide the best level of care. Unfortunately, some doctors dismiss a patient’s complaints and don’t make a referral. Other doctors may make the wrong kind of referral. Failed referrals or the wrong referral can cause additional delays in treatment and increase the risk of injury. 

If you suffered an injury caused by a wrong referral, a medical malpractice claim can help you recover damages for your injuries. If you have any questions about medical errors related to a wrong referral, contact our medical malpractice law firm for help.

When A Doctor Makes a Referral

According to the U.S. Department of Health and Human Service, a referral is, “a written order from your primary care doctor for you to see a specialist or get certain medical services. In many Health Maintenance Organizations (HMOs), you need to get a referral before you can get medical care from anyone except your primary care doctor. If you don’t get a referral first, the plan may not pay for the services.”

A referral is one of the most annoying parts of dealing with health insurance in the U.S. Your doctor may understand you need to see a specialist but the insurance company has to weigh in to decide if it makes sense for their bottom line. The insurance company may not want you to see an expensive specialist because they may have to pay the specialist for expensive treatments. 

A referral can be complicated because the doctor first has to agree that you need to see a certain kind of health care provider and then the insurance company has to review the referral and approve it before you can even get treated. This can be very complicated when you need immediate care because if you see the specialist before the referral is approved, you may be on the hook for the medical expenses, even if you have insurance. This is another example of the healthcare industry in America putting profits over patients. 

Referral to a Specialist

Your primary care doctor can provide many types of treatment. However, your doctor may not be the best to handle certain types of care. Specialists practice specialized medicine. There are a number of board-certified medical specialties that require additional education, testing, training, supervision, and experience. In some cases, your doctor has a duty to refer their patients to a specialist

For example, if a doctor notices unusual skin pigmentation, the doctor may be unsure about what the skin condition might be, whether it is dangerous or not, or how to treat the issue. A dermatologist, who specializes in treating conditions of the skin, would likely have a better understanding of the skin condition compared to the general medicine doctor. In many cases, the doctor would refer the patient to a dermatologist.

Another common example of when a doctor should get a referral is if they are unsure of the treatment or diagnosis. If a patient comes in complaining of chest pain, the doctor may perform the generally accepted tests, including taking a proper patient history and asking the necessary questions. If the doctor does not know the source of the pain even after performing a standard review, the doctor could refer the patient for further review. 

Types of Specialists

According to the American Board of Medical Specialties (ABMS), there are hundreds of recognized specialties and subspecialties. Some of the primary specialty certificates include: 

  • Allergy and Immunology
  • Anesthesiology
  • Colon and Rectal Surgery
  • Dermatology
  • Emergency Medicine
  • Family Medicine
  • Medical Genetics and Genomics
  • Neurological Surgery
  • Nuclear Medicine
  • Obstetrics and Gynecology
  • Ophthalmology
  • Orthopaedic Surgery
  • Otolaryngology – Head and Neck Surgery
  • Pathology
  • Pediatrics
  • Physical Medicine and Rehabilitation
  • Plastic Surgery
  • Preventative Medicine
  • Psychiatry and Neurology
  • Radiology
  • Surgery (General Surgery)
  • Thoracic Surgery
  • Urology

Many specialties have several subspecialty areas, which means there are hundreds of doctors who specialize in very specific areas of treatment. For example, the Board of Internal Medicine has more than 20 subspecialties, including transplant hepatology, infectious disease, and neurocritical care. Training can require a medical degree, licensing requirements, 3 years of full-time internal medicine residency education, clinical competence, and approval by the board.  

My Doctor Referred Me To the Wrong Type of Doctor

It can be dangerous when a doctor refers a patient to the wrong type of doctor. Wrong referrals can delay treatment and increase the risk of patient harm. For example, if a doctor referred a patient to an anesthesiologist instead of an oncologist, the anesthesiologist may not be able to properly evaluate the patient’s signs and symptoms. Even if the anesthesiologist then refers the patient to the proper oncologist, it could have taken weeks or months before the patient is seen by the right type of doctor. 

Some conditions can be made significantly worse by delaying treatment by weeks or months. Referring the patient to the wrong type of doctor can be considered medical malpractice if the doctor deviated from standard medical care by failing to recognize that the patient should have been referred to a different type of doctor. 

My Doctor Didn’t Refer Me To a Specialist

It is more common for a doctor to fail to refer the patient at all. We’ve all had doctors that were not good listeners. Doctors who don’t take the time and patience to listen to their patient’s concerns, complaints, and history of care may come to the wrong conclusion about the patient’s diagnosis or treatment options. A doctor may only take a few minutes to evaluate a patient. However, that patient has had a good understanding of their own body for decades. 

If a doctor doesn’t understand the patient’s condition, they may be unable to make the proper evaluation. This could result in the doctor simply telling the patient they are fine, or, “it will go away.” It is not uncommon for a doctor to tell a patient, “well, if it doesn’t get better or it gets worse, come on back.” That is not advice that makes a patient feel very confident. 

When your doctor does not understand the cause of the complaint, has run out of diagnostic ideas, or simply doesn’t have the time to properly treat the patient, they should refer the patient to a specialist. In some cases, a doctor doesn’t refer a patient because they forgot, was distracted by other duties, or even left the care of the patient because their shift was over.  

Negligent Medical Referrals

When is a medical referral a cause for negligence? Negligence is the breach of duty of care that causes injury or harm. In a medical malpractice case, the patient may be able to recover damages if they can show 5 elements. The elements of a medical malpractice claim include: 

  1. Doctor-patient relationship  
  2. Doctor owed the patient a duty of care
  3. Doctor breached the duty of care
  4. The breach caused the patient’s injury
  5. The patient suffered harm or damage as a result

In most medical malpractice cases involving a wrong referral, the primary issue is whether or not the doctor breached their duty of care by failing to get a referral or making an improper referral. 

The duty of care for a doctor is based on the medical standards of doctors in that type of practice. Whether the doctor deviated from medical standards by failing to refer a patient or making a wrong referral is based on several factors, including the doctor’s degree of skill, education, practice area, and medical community

Would A Reasonable Doctor Have Made a Referral?

The question a jury might decide in a wrong referral malpractice case is whether or not the doctor was reasonable in making the referral. The jury gets to hear from medical experts to make this determination. Medical experts can help inform jurors about standards of care in areas like medicine, science, and technology. 

In a medical malpractice case, the attorneys will refer their cases to experts to get their opinion. Your medical malpractice attorney may contact experienced doctors in a related medical field to review the record. The experts can look at the medical records and review testimony from the parties involved. The expert may also review any medical exams to get an understanding of what the surrounding circumstances were at the time the doctor made a decision about a referral. 

If the expert believes that the doctor’s actions represented a deviation from standard medical practice, they can provide their findings in an expert report. During a trial, the experts can also testify to the jury, to help them understand what a reasonable doctor would have done under similar circumstances. If the jury finds the doctor breached their duty of care, which caused the patient’s injuries, then the doctor may be liable for damages. 

Doctor Referral to Practice of Family Member or Financial Interest

Another problem with doctor’s referrals involves referrals for self-interest. Self-referral refers to doctors who refer patients to receive health benefits from a provider with which the doctor or an immediate family member has a financial interest. With some exceptions, self-referral for Medicare or Medicaid patients is not allowed. If a doctor makes an illegal self-referral, they may be committing federal healthcare fraud. 

Stark Law Violations for Self-Referral

Under 42 U.S.C. § 1395nn, if a physician or their immediate family member has a financial relationship with an entity that provides a designated health service, the physician may not make a referral to the entity for the furnishing of designated health services for which payment is made. Also referred to as the Stark Law, this is to prevent doctors from referring Medicare and Medicaid patients to enrich themselves. 

Designated health services include: 

  • Clinical laboratory services
  • Physical therapy services
  • Occupational therapy services
  • Outpatient speech-language pathology services
  • Radiology and certain other imaging services
  • Radiation therapy services and supplies
  • Durable medical equipment and supplies
  • Parenteral and enteral nutrients, equipment, and supplies
  • Prosthetics, orthotics, and prosthetic devices and supplies
  • Home health services
  • Outpatient prescription drugs
  • Inpatient and outpatient hospital services

Rewards for Reporting Illegal Self-Referral

If you notice your doctor may be violating federal laws by referring you for treatment at a side-practice, relative’s practice, or clinic where the doctor has a financial interest, you may be able to recover compensation. A qui tam lawsuit is like a whistleblower claim where you can recover a portion of the damages for False Claims Act violations. You do not even have to be the patient of a doctor committing fraud to recover compensation. 

Using an attorney to file a qui tam lawsuit under the False Claims Act means that you can take a financial interest in the money the government recovers from the Medicare or Medicaid fraud. Depending on whether the government intervenes or you pursue the case without the government, you can recover between 15% and 30% of the amount collected from the fraudulent doctor. 

Do I Have a Malpractice Claim Caused By a Wrong Referral?

Like many other types of medical malpractice, it can be difficult for the patient to be sure that the doctor committed negligence that will allow them to file a lawsuit. Many medical errors happen without the patient knowing. Some doctors even try to cover up their mistakes after the fact. This can make it difficult to know whether your injuries were caused by malpractice. 

You don’t have to be 100% sure about your doctor’s negligence to talk to a medical malpractice attorney. During the initial consultation, your attorney will be able to hear your side of the story, to help you determine whether you have a case. Your attorney can review medical records and have your case looked at by a medical expert who understands what the standard medical care would be for a case like yours, and whether your doctor or the hospital made a dangerous error.  

When you are trying to find a malpractice attorney, ask any questions you have to make sure they will advocate for you, keep you informed, and fight to get the maximum compensation for your injuries. 

Questions About Medical Malpractice Claims 

If you don’t talk to a medical malpractice attorney, you may never be sure that your doctor’s wrong referral was the cause of your injuries. A malpractice claim may be the only way for you and your family to recover compensation after a medical error. It is also an important way to hold negligent doctors and hospitals accountable for their mistakes. Bringing to light a negligent referral can also motivate hospitals to make changes in their practices to help prevents similar accidents in the future. 

Talk to experienced trial attorneys who can review your case, get an expert’s review, and help you understand your legal options to file a claim after a medical malpractice injury. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.

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