Do you increase your chances of being sued for malpractice if you refer patients to practitioners of complementary and alternative medicine (CAM)? What if you referred a patient to, say, an acupuncturist, and he injured the patient?
A lawsuit is possible, and you should take the risk seriously. But if you're conscientious in your referrals, the odds should be pretty low, say physi- cians and lawyers who are wellversed in this area.
Before you get too comfortable, however, realize that some key factors are changing. Right now, there's relatively little relevant case law. While there are cases involving physicians who practice CAM themselves, the experts we spoke with weren't aware of a single case involving a physician who referred to a CAM practitioner. But as CAM usage increases, and the pockets of the practitioners (or organizations that employ them) become deeper, more litigation is likely, and the refer- ring physicians could get sucked in. (For more on the current rate of lawsuits against CAM practitioners, see page 43.)
Such cases will clarify how the courts view CAM practitioners and physicians who integrate CAM into their practices. Until that clarification comes, it's hard to say for certain what constitutes a sound risk-reduction strategy. What is certain is that you don't want to be the physician named in one of those precedent-setting cases.
How can you avoid that? Here's some information.
How referrals can get you into trouble
Attorney David M. Studdert, lead author of a study in JAMA last November, anticipates that the courts will treat referrals to CAM practitioners just like referrals to other physicians. If he's correct, that means you're generally not liable for harm inflicted by the other practitioner. But there are exceptions.
For example, a referral is considered negligent if it delays, prevents, or minimizes the opportunity for the patient to receive needed care, and the patient suffers as a result. Let's say you refer a patient who actually needs surgery to a chiropractor. You could be held liable if the delay leads to a worse outcome for the patient than if he'd been scheduled for timely surgery.
Another example is a referral to an incompetent practitioner. Suppose you have reason to know that an acupuncturist has been disciplined for using unsterile needles. You could be held liable for any injuries he causes your patient, just as you would be if you referred to a surgeon with a known shoddy record..
And since the courts could look upon any unlicensed practitioner as incompetent, it's smart to steer clear of them, says Studdert, a policy analyst for Rand in Santa Monica, CA. No exceptions. If your state doesn't license massage therapists, for instance, don't refer to them, he says.
Yet another way you could be on the hook for a referral is if you're supervising the patient's care, or the patient has good reason to believe that you are. "I can envision a situation in which an overbearing physician calls a massage therapist into the office, explains how the treatment should be done, and demands a report," says Studdert. The patient might construe that as supervision.
His advice? Make it clear to the patient that the referral initiates a new and independent patient-practitioner relationship. Doctors need to walk a fine line: While it's reasonable to consult with the practitioner and expect to see a report, you need to convey respect for the practitioner's judgment.
Safeguards to help keep plaintiffs' lawyers at bay
The best way to minimize your malpractice exposure is to thoroughly evaluate the patient before you make a referral. If you provide an accurate diagnosis and carefully rule out the need for more-conventional care, you'll lower the chances that the patient can later charge you with a negligent …