Previous Page | Next Page
A patient in Illinois with a lump on her neck asked her internist for a referral to a specialist. Because hr health plan discouraged referrals, he put the patient off and decided to treat her himself.
When she got fed up and saw a specialist on her own, that doctor found a malignant tumor. The patient sued the internist, and she was settled for an undisclosed sum. The state medical board sanctioned the doctor for failing to diagnose the cancer and for practicing outside his specialty.
That scenario is being repeated across the country as physicians complain that managed care plans are pressuring them to do procedures and perform services beyond their expertise. Malpractice insurers worry that such cost-cutting efforts could ultimately lead to an avalanche of lawsuits against primary care doctors.
"We all know that a primary care doctor can lose money under managed care if he makes too many referrals," says Karp. "But if something goes wrong, a plaintiff's lawyer could raise that issue as a motivating factor, even if it can't be proved. He'll ask, "Isn't it true doctor, that you didn't refer my client because it would mean losing part of your captivated fee? The judge might rule the question out of order, but the jury will have heard it and it may have a very powerful effect."
Many primary care doctors bow to cost-cutting demands by interpreting their patients' test results themselves instead of relying on reports from specialists. Nonradiologists now interpret about 80 percent of pelvic, hip, and extremity X-rays, and about two-thirds of all chest and spinal films, according to one recently published study of radiology in nonhospital settings. This shortcut can land a FP or internist in court if he misses something.
What constitutes "beyond the scope"?
Most health plans define the "scope of practice for each specialty, and their contracts list in the procedures covered. Theoretically, physicians have the right to delete any procedures for which they feel they aren't qualified. But there's often little room for negotiation, because individual doctors don't have much bargaining power with HMO's.
Unfortunately for primary care gatekeepers, many health plans define the scope of their practice quite broadly. Contracts for FP's and internist may include flexible sigmoidoscopies, treadmill stress tests. Holter monitoring extremity X-rays, splinting of sprains and simple fractures, pelvic exams, ECGs, allergy testing, repair and suturing of multiple- layer wounds, incision and drainage of complicated abscesses, excision of benign lesions, debridement of skin and many lab and radiology tests.
"We were all trained to refer to the appropriate specialists, because they know more about a condition than we possibly could," says Mary Herald, an internist Westfield, NJ. "Now primary care doctors are doing a lot of these things themselves. If you were the only doctor within 200 miles, or if no specialists were nearby, you might have to do these procedures. But some of the surgery we're supposed to be doing now makes me really uncomfortable."
For example, Herald cites one HMO contract that calls for primary care doctors to excise benign lesions of any size. "I can't imagine removing a 4-cm lipoma in my office," she says. "It takes special training to use liquid nitrogen or a laser properly. What about deciding whether to destroy the tissue or to biopsy it? And if a lesion's on the patient's cheek, no one should touch it but a plastic surgeon."
Referral disputes often arise when primary care physicians are asked to treat dermatologic and allergic conditions. While many primary physicians are qualified to treat common cases in those fields, a specialist's expertise may be required for severe or chronic conditions. "I worry about general practitioners' taking on more than they should." Says James Moy, director of the allergy-immunology program at Rush-Presbyterian-St Luke's Medical Center in Chicago. "No matter how good a primary care doctor is, there's only so much one can know."
Some complaints about primary care doctors practicing beyond their scope are really turf battles, not quality of care issues, says George Schroeder, a risk management consultant in Westminster, CA. "The allergist, dermatologists, and radiologists are complaining, because they're losing business from managed care pressure on primary doctors to limit referrals. But that doesn't necessarily mean the FPs and internists aren't qualified to do what they're doing.
"Say an FP looks at a mole and decides to remove it, or does a biopsy, instead of sending the patient to a dermatologist," he explains. "Legally there's nothing to stop him if it's an office procedure, and it may not be bad medicine. Sure, the dermatologist may have more training or better techniques, but most FPs and internist are trained to do these minor procedures."
Some are not, however, counters Lee J. Johnson, director of risk management at Frontier Health Care of White Plains NY. She cites the case of a 43-year-old woman who went to her family physician complaining of pain in one eye and redness in both. After a cursory exam, the FP diagnosed conjunctivitis and prescribed a steroid-based medication. He told her to return in one week.
Two days later, the pain became excruciating and the woman went to ER. An exam there showed a fungal infection. Probably exacerbated by the steroid medication that resulted in the loss of her cornea. A corneal transplant failed, and she faces the possible loss of sight in that eye.
The woman sued the FP for malpractice, charging him with failure to diagnose and negligent treatment. Both medical experts retained by the FPs insurance carrier agreed that he had deviated from the standard of care by treating the patient without ordering a complete opthmalogic workup. Unwilling to risk a trial verdict the company settled the case for 250,000.
No doctor can do it all
"Primary care doctors must realize that they can't be like Marcus Welby anymore," says Johnson. "They can't do everything themselves, even if health plans want them to. If they do, and they're sued, the standard of care will be based on the specific procedure. If it's a dermatologic procedure, the standard is one for dermatologists. If it's the interpretation of a n X-ray, it's the standard for a radiologists." The fact that the physicians health plan contract includes the procedure in question won't help protect the doctor.
It's not always easy to decide whether a doctor is qualified to do a procedure. "Take Lyme disease." says Johnson. It's one of the most misdiagnosed conditions. FPs and GPs often make diagnoses based on inconclusive indications from a Lyme test. Some are treating dozens of patients for Lyme with IV antibiotics. Should they be referring those patients to infectious disease specialists? Are they increasing their liability by not doing so?
FPs and internists can get into trouble even with something as routine as a sigmoidoscopy, says Odysseus Argy, a general surgeon in South Dartmouth, MA, who often lecture on risk management. "If a patient comes in with rectal bleeding." Say Argy, the internist will probably do a flexible sigmoioscopy. If that doesn't show a source for the bleeding, and especially if there's a history of colon cancer, he should order a barium enema or a complete colonoscopy. If he doesn't, and the patent turns out to have colon cancer, the doctor will face a malpractice suit.
"Or say he does a flexible sigmoidoscopy because the HMO won't approve a referral for it, and he perforates the patient coon. Even if the physician is competent, a lack of recent experience with the procedure will hurt him in court. The plaintiff's attorney will ask, "Doctor, when did you perform your last sigmoidoscopy?" If it's was a year ago or, worse, back in his residency, he's in trouble."
An informed consent issue applies as well. "If you haven't done a risky procedure before or haven't done it frequently, are you obligated to tell the patient that? Asks David Karp. "The patient would probably say yes, and so will the plaintiff's attorney when he files a claim."
Informing the patient of the limits of your training and experience may not always help particularly if it's the patient-not the health plan-who's pushing you into doing a procedure. That can occur because the HMO denies a referral, or because the patient simply isn't covered by it.
"This often happens when the doctor and the patient have a long and close relationship: says George Schroeder." "The patient will say. 'Oh come on, Doc, I don't really need specialists for that. Can't you just take care of it yourself?' But then, if there's a poor outcome, the same patient may sue the doctor, despite their wonderful relationship."
The legal risk is hard to quantify
Because there's a gap of several years before most lawsuits are closed, physicians' increased risk for practicing their scope isn't reflected yet in the rate of malpractice claims. So it hasn't resulted in higher premiums. But insurance company risk managers expect that to change.
"At this point," says Karp. "We're hearing mostly anecdotal reports involving missed or delayed diagnosis for cancer and heart disease. But those may not show up as malpractice cases for several years because of the lag time in filing claims. If say a doctor misses a cancer diagnosis, it might be a year or two before a correct diagnosis is made, then two or three more years before a claim is filed."
Audrey Vanaguanas, vice president of risk management with Illinois State Medical Insurance Services, agrees. "We know it's a growing problem," she says, "although it hasn't shown up yet in our claims data. But that may be because we only track closed claims."
Some companies are beginning to see a trend, though, ProMutual Group, a Boston-based carrier, found that claims against office-based physicians have risen form13 percent of the total in 1988-before the rapid spread of managed care in Pro-Mutual area-to nearly 40 percent last year. While some of that increase may be due to the growth in office-based procedures by surgeons and other specialists, ProMutual's vice president of risk management, Maureen Mondor, attributes part of it to managed care pressure on primary care doctors. "That's a problem we hear a lot about when we do site visits," she says.
Compare your contract and insurance policy
Will you be protected if you practice beyond your expertise? Better check your malpractice policy and make sure it covers the procedures your health plan is pushing you to do. Many carriers define the scope for primary care physicians more narrowly than health plans do, and their policies may specifically exclude coverage outside that scope. Before agreeing to treat conditions outside your specialty, risk recommend that you get training and credentials in area tht require new skills.
Even if you've performed a procedure for which you're deemed unqualified, your carrier may not deny coverage for a claim except in an egregarious case. But the company may tell you to apply for additional coverage and insist that you get proper training for that procedure. If you don't the company may decode not to have to renew your policy.
Rather than risk a large jury award, a carrier will generally settle a claim involving a defendant who clearly practiced beyond the scope of his ability. But in other cases, the outcome is unpredictable. "The key question," says Schroeder, is not whether there was a delayed diagnosis, but whether the delay was due to pressure from the health plan? Delayed diagnoses happen all the time. To establish negligence on the doctor's part, you have to show that a reasonably qualified physician would have made the correct diagnosis sooner.
"It's easy for an expert witness to say in hindsight that a special would have caught the problem sooner or done a better job of treating the patient, "he adds. "But it's often difficult - even for an expert-to determine whether an FP or internists was unqualified to do a particular procedure, or if he should have referred to a specialist. Take a patient with low back pain; how long do you wait before referring him to a neurologist or an orthopedic surgeon? It's always a judgement call."
You have an obligation to resist the pressure
The anger and frustration of patient whose medical care is restricted by health plans will lead to increased litigation against doctors, predicts Gerald Hickson, head of pediatrics at Vanderbilt University School of Medicine in Nashville. "That anger," he says; "is often directed at primary care gatekeepers who find themselves under subtle and not-so subtle pressures to refer less and do more themselves.
Standing your ground can be challenging. "It's not as simple as saying "I don't do brain surgery, "says Hickson. "That's an easy call to make. But all of us face occasional dilemmas about whether we're really qualified to do certain procedures. For example, I'll treat routine asthma, but not complex asthma. In such cases, I call the plan's medical director and explain why that's outside my scope. I do that not only because I don't feel qualified, but also because I'm the patient's advocate. I have a responsibility to see that he gets the care he needs from a qualified doctor.
"Physicians have an obligation to recognize what they can and cannot do," says Hickson, " and to say No when they're asked to perform a task for which they're untrained or unskilled. No one holds a gun to a doctor's head to make him do a procedure. To engage knowingly in the delivery of services for which one is not competent- except in an emergency- is both a deviation from the standard of care and unethical."
Previous Page | Next Page
Return to the Perry Hookman, M.D., P.A. Home Page