Doctor Duty to Inform Patient of Need for Specialist? Yes, but…

A doctor’s duty of care to a patient in New Mexico is fairly broad.  One important aspect of the duty of care is the duty to refer a patient to a specialist when one is needed.

Medicine has Grown More Specialized

Obviously, this duty is extremely important.  Medicine has grown increasingly specialized.  With specialization, there have been significant advances in science, treatment, procedures, techniques and so on.

A primary care provider is not likely to keep abreast of these advances.  Nor is a specialist in one field likely to have sufficient knowledge of advances in another.

The Jury Instruction is clear and succinct on the issue of referral to a specialist

When it is clear that the problem requires a specialist outside of the doctor’s area of expertise, then there is absolutely no gray area in the duty to refer the patient to an appropriate specialist.  NM Jury Instruction Civil 13-1103 Duty to inform patient of need for another doctor, states the duty quite clearly and succinctly:

“If a treating doctor knows, or should know, that a doctor with other qualifications is needed for the patient to receive proper treatment, it is the duty of the treating doctor to tell the patient.”

In case there was any doubt, the New Mexico courts have interpreted this to mean that the duty is breached when a doctor fails to inform the patient that the patient’s condition requires treatment from a specialist.

There is little wiggle room here where the condition clearly indicates the need for a specialist.  More importantly for a patient that suffers harm due to a failure to make a referral, the medical records must indicate the need for a specialist.  Where this is the case, the duty is clear.

Need for a Referral to a Specialist Not Always Clear

However, the need for a specialist or the need for a different specialist may not always be so clear-cut.  Uncertainty may shield a doctor or other medical providers from liability.  The need for a specialist is measured at the time of the doctor’s treatment, not typically in hindsight.

Of course, there remains the general standard of care that requires the doctor or medical provider to “possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified doctors/healthcare providers.”  So clear negligence in properly detecting the need for a specialist will not get the doctor off the hook.

Gray areas arise often particularly in referral between somewhat overlapping specialists

However, there are some very gray areas here.  One such gray area occurs when one specialist fails to recognize or consider the need for a second or a more appropriate specialist.  As they say, when your only tool is a hammer, everything looks like a nail.  Perhaps more cynically, when your only tool is a hammer, it quite literally pays to see everything as a nail.

This comes up more often than one might think.  Just by way of example and by no means to limit the issue to orthopedist, spine issues may result in hip issues.  For instance, an impinged nerve in the spine can cause radiating pain into the hips and other extremities.  If you first see a hip specialist, he may very well suggest hip surgery.  Of course, if the problem originates in the spine, there will be no relief and you may have endured an unnecessary surgery.

 How to does one show the doctor knew or should have known of the need for another specialist when there is possible uncertainty?

On the other hand, maybe the x-rays and MRI’s also show issues in the hip, just not the issues causing the pain.  The hip doctor may honestly determine a need for hip surgery to repair those issues.  So what then is the duty?

Has the duty been breached if the doctor knew or should have known that the hip problems were not the source of the pain?  Perhaps more importantly, how would one go about, proving the doctor knew that it wasn’t the problem?  Certainly, the notes will not state as much.

Failure to Refer Has Many Risks of Which Patients May Not Be Aware

Again, this is not to pick on orthopedists.  This potential issue/conflict occurs with other specialists as well.  In any event, a failure to refer a patient has significant potential risks and costs.  The potential issues go far beyond the expense, pain and recovery from an unnecessary surgery.

Medical error accounts for “roughly one-sixth of all deaths that occur in the United States each year”

In a recent report from the Journal of Patient Safety, it is estimated that as many as 440,000 patients die each year as a result of preventable medical error.  The report shockingly reports that “This is roughly one-sixth of all deaths that occur in the United States each year”.  Perhaps, just as troubling, the report further estimates that 10-20 times that number suffer serious harm.  

So assuming you become one of these victims as a result of an unnecessary surgery, then what?  In the obvious case, the liability is clear.  In these cases with some level of ambiguity or doubt, it may very well be that the decision of the doctor is given the benefit of the doubt even though in hindsight, the decision was clearly wrong.

Moral of the Story – Get a Second Opinion

Surgery should be the last recourse in any situation.  It most certainly should not be done in the absence of necessity.  In order to determine the necessity or appropriateness of a given surgery, it is important for the patient to get a second opinion (and even third or fourth where there is any doubt).

“Trust but verify”

Your health and safety are far too important to do otherwise.  In light of all that can go wrong and how frequently things do go wrong, you owe it to yourself and your family to seek a second opinion.  As they say, “Trust but verify”.  

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