RISK MANAGEMENT TIPS:
Could You Be Liable for Making a Referral?

Psychiatrists frequently refer patients for further treatment and/or evaluation, to both medical providers and non-medical providers. As you know, patient referrals should be made to a suitable provider for legitimate treatment reasons.

Courts have held that a negligent referral may be a basis for liability under general negligence principles. A negligent referral may occur when the referring physician knew or should have known that there was a likelihood that the specialist would act below the standard of care.1 The plaintiff has the burden of proving this. When determining whether a negligent referral occurred, courts use a “reasonable person” standard, i.e., would a reasonable physician have made this referral? Keep in mind that in addition to a potential for a legal basis for liability, negligent referrals may also violate ethical standards.

After referring a patient to another provider, the psychiatrist also needs to be mindful of potential liability for failing to properly follow up with the patient and/or parent/guardian, and the referred to provider. The referring physician should ensure that the patient actually saw the specialist, and that all reports are received and acted upon.2 Remember to obtain patient and/or parent/guardian consent prior to contacting the referred to provider.

Risk Management Tips When Making a Referral

  • Be objective and do not over inflate the specialist’s qualifications
  • Never make a referral strictly for monetary gain and avoid referrals that may trigger anti-kickback laws
  • Make clear to the patient and/or parent/guardian that the provider referred to is independent from your practice, that you do not supervise or are not in partnership with the referred to provider
  • Ask yourself, does the referral meet the “reasonable psychiatrist” standard?  Would a reasonable psychiatrist in the same situation make this referral?
  • Follow up with both the patient and/or parent/guardian, and the provider referred to and make sure all reports are received and read
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About the Author

Jim Rogers founded his firm in 1987 and has extensive litigation and administrative experience in the healthcare field. Since 2002, Jim has held the highest peer rating of AV® Preeminent (5/5.0) by Martindale- Hubbell. In 2013, 2014 and 2015 Jim was recognized by San Diego Magazine as “San Diego’s Top Lawyer” in the field of “Medical & Mental Healthcare Professionals & Institutions” and on two occasions was given the Distinguished Contribution to Psychology Award by the San Diego Psychological Association. Jim manages his law firm and continues to litigate medical, legal and professional liability cases and also serves as General Counsel for eTherapyfinder.com. Jim received his Juris Doctorate in 1981 from California Western School of Law, San Diego, CA and his Bachelor of Science in Business Management from Virginia Polytechnic Institute and State University in 1974.

  1. Crane, M., “Legal Pitfalls When You Refer Patients,” Medscape Nurses, http://www.medscape.com/viewarticle/828402 (Last accessed 8/3/15).
  2.  Id.
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