A recent Texas case involving a dispute over an expert's report in a medical malpractice claim serves as a reminder to providers that they should consider the competency and reputation of physicians and providers to whom they refer patients. In the Texas case, the plaintiff sued a physician, a clinic and others, individually and as representative of the patient's estate, for the negligent referral of a patient to a physician who had a "well-known public history, both in the medical community and in the community at large, for incompetence and drug use."

While the court only addressed the adequacy of the experts' reports and was not called upon to address the negligent referral cause of action, the court quoted the experts' discussion of the standard of care applicable to referrals.

The first expert stated that it was:

. . . incumbent upon a referring physician to exercise reasonable care in referring a patient to another physician, whether in the context of simply seeking a consultation from a physician in a different specialty or in the case of an outright transfer of care of the patient to another physician. Reasonable care in making such a referral at the bare minimum requires that the referring physician have a basic knowledge of the skills and professional reputation of the physician to whom the patient is being referred. In other words, it would fall below the standard of care for a physician to refer a patient to a physician of whom he had no knowledge.

Assuming that a referring physician has a basic understanding of the skills and professional reputation of the physician to whom the patient is being referred, the standard of care requires that a referring physician refrain from referring a patient to a physician with a well-documented history of drug use, malpractice, and repeated complaints by the board of medical examiners.

The second expert's report suggested that a referring physician must be familiar with the contents of the Texas Medical Board's newsletter, including the newsletter's disciplinary action announcements, which set forth the numerous disciplinary actions taken by the Board against the doctor to whom the patient had been referred.

Therefore, providers should consider establishing a protocol for assuring that referrals are made to competent providers. Where a referral is mandated to be made to a select group chosen by a third party, such as a managed care payer, or the provider is required to give a patient a list of potential providers, such as Medicare's home health and imaging provider lists, providers should consider adding a disclaimer that the potential providers are not endorsed by the provider.