Referral and Negligent Referral in a Dental Practice

Patient referrals can cause frustration and confusion in a dental practice. Although claims involving patient referrals are relatively few, general dentists should be aware of the potential liability issues.

In addition to claims alleging failure to refer or delay in diagnosis that result from lack of referral, patients may allege that the practitioner they were referred to by the general dentist provided substandard care and that the referral itself was negligent. This creates liability exposure for dentists who refer care outside their background, experience, or training. Ask yourself: “Is this patient’s condition within my clinical competence?”

Most claims involving failure to refer or delay in referral for evaluation or treatment involve care provided by specialists. The most common referrals are for oral surgery, periodontal disease, implants, and orthodontia.

Case Study

During a routine prophylaxis visit, a middle-aged male reported a mass under his tongue, which his general dentist evaluated as an aphthous ulcer. Several months later, another provider biopsied the mass and diagnosed Stage IV squamous cell carcinoma. Extensive surgery and radiation treatment were undertaken, and significant plastic surgery was required. The patient alleged both dental negligence and failure to refer to a specialist. The defendant dentist claimed that the patient had been told to follow up with his primary care physician (PCP) or an oral surgeon.

There was no documentation of a formal referral to a specialist or PCP, nor was there documentation of the dentist’s observations or referral recommendation. The adverse result in this case may have been avoided or the impact lessened if the dentist had documented his observation, evaluation, and testing to show there was a low suspicion of cancer or if there had been a documented referral and follow-up on the referral.

Clinical Comfort Level

There are times that local specialists are unavailable or the patient refuses to seek care that is far away, and the patient may ask you to provide the treatment. If you undertake a course of treatment that is outside your background, training, or experience, there may be increased risk of injury to the patient that would not be present if the treatment had been undertaken by a specialist. In addition, the patient cannot waive your professional duty by consenting to a negligent act. If the patient is injured, you will be judged against the specialist’s standard of care.

The best practice is to not let the patient push you into a course of treatment that is beyond your clinical comfort level. Explain that the referral is the best course of action. If a lack of treatment could result in an adverse outcome, serious disability, or death, you may need to spend more time helping the patient get the necessary specialty care. Your documentation should explicitly outline your discussions with and counseling of the patient and, if necessary, include the patient’s informed refusal of specialty care. You may want to consider terminating the patient from your practice if he or she will not follow your recommended treatment plan.

The American Dental Association’s General Guidelines for Referring Dental Patients notes: “In some situations, a dentist could be held legally responsible for treatment performed by specialist or consulting dentists. Therefore, referring dentists should independently assess the qualifications of participating specialist or consulting dentists as it relates to specific patient needs.” This means that you can be held vicariously liable if you refer a patient to a specialist who lacks skill or judgment—regardless of whether the poor care is due to lack of training, carelessness, or impairment.

Your first duty is to protect your patients. If you note a pattern of poor care provided by a specialist you have previously recommended, you are obligated professionally to exercise due care and avoid that provider for future referrals. When making a referral, ask yourself, “Would I consent to be treated by the specialist I am recommending?”

Communication

Effective communication is critical to a successful referral. The best practice is to explain to the patient why the referral is needed for a particular treatment or condition and that you will continue to provide all other dental care.

Select a specialist based on the patient’s needs, and communicate to the patient why you are recommending that particular specialist. Decide what level of involvement is needed for this patient in facilitating the referral. Do you provide contact information only? If you have the ability to do so, you may consider contacting the specialist on your patient’s behalf and setting up the appointment.

Let the patient know what to expect from the specialist and the treatment, and reassure the patient that you will remain in contact with everyone to ensure the best possible outcome.

For dentist and specialist communication, a written referral is the best practice for avoiding problems. A referral letter should contain the following information:

  • Patient demographics and identification.
  • Evaluation and treatment completed to date.
  • Copies of diagnostics performed, including information about when it was collected.
  • Diagnosis and prognosis.
  • Desired evaluation/care the specialist is requested to complete.
  • Your plan for after-care following the specialist’s intervention.
  • A request for a consultation report and ongoing status reports.

Tracking

Having a process to track patient referrals and returns will help to enhance patient care. The process should be kept separate from the patient’ record so that it is centralized and uniform. The tracking should cover the time frame from the patient’s referral to his or her return to you, and it should provide a method for reminders or tasks to move the process along or documentation for why it has not progressed. If the referral is not being completed in a timely manner, the process should include a method for contacting the patient and specialist to facilitate care.

Documentation

In the event of a claim, documentation is the best evidence. The dental record must document the referral process. It must document the evaluation, treatment, and discussions with the patient that resulted in the referral. Copies of written communications and evidence of any oral communications, including phone calls and messages with both patient and specialist, must be kept in the patient record. Documentation of patient refusal or nonadherence must be in the record, as well as all evidence of efforts to overcome the refusal or nonadherence. Finally, if you cannot move the patient to seek specialist care, you must document your decision to not treat the patient further. This decision should be followed by a properly handled termination of the dentist-patient relationship.

 


By Greg Abramson, JD, CPHRM, Patient Safety Risk Manager.


The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

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