By Alex Stein
Four days ago, the Supreme Court of South Dakota delivered an important decision on when a physician’s failure to refer a patient to another doctor constitutes malpractice. St. John v. Peterson, — N.W.2d —- (S.D. 2015), 2015 WL 3505401. This decision hides in the Court’s rulings on the admissibility of evidence, and so it’s important to give it the publicity it deserves.
The Court decided—correctly, in my opinion—that a physician has a duty to refer her patient to another doctor when she is not competent to carry out the procedure the patient needs or when the referral is part of the customary practices and protocols followed by her peers. The availability of other, more experienced, better skilled and better performing doctors is not a good reason in and of itself for imposing a referral obligation on the physician.
The Court had very good reasons for making that decision.
In South Dakota and everywhere else in the United States, a physician commits malpractice only when she fails to conform with her specialty’s customary practices and protocols. By the same token, conformity with those practices and protocols guarantees the physician full immunity against liability. When those practices and protocols do not require referral, the physician’s failure to refer the patient to another doctor—who can deliver a better treatment—does not constitute malpractice. Critically, this rule also applies when a cost-benefit analysis of the patient’s situation calls for such a referral. Doctors’ internal customs override any external cost-benefit analysis.
As I explain in my work on the foundations of our medical malpractice system, this override reflects the system’s need to base doctors’ liability on well-articulated rules and protocols, as opposed to a broad “negligence” standard. Our system prefers rules to standards to allow the compliant physicians to do their job without fearing suits for malpractice. Courts and legislators cannot properly formulate and periodically update medical rules and protocols. For that reason, our system delegates the rulemaking power to the medical profession and requires qualified expert witnesses to testify about applicable rules. A plaintiff’s failure to call a qualified expert to identify the applicable rule and the defendant’s deviation therefrom dooms his suit: see, e.g., here and here. Moreover, many states require plaintiffs to submit an affidavit or merit certificate from a qualified expert upon filing a suit. Failure to comply with this requirement results in the suit’s summary dismissal: see here, here, and here.
In the case at bar, the plaintiff argued that the defendant inadequately repaired her vesicovaginal fistula (a postoperative complication of some gynecological procedures that causes very uncomfortable and uncontrollable discharges of urine, as well as emotional problems). She argued that the defendant’s performance was below the specialist level. The plaintiff’s principal complaint targeted the defendant’s failure, as a non-specialist, to refer her to another physician who specializes in repairing vesicovaginal fistulas. To prove that this failure constituted medical malpractice, the plaintiff offered evidence of how the defendant treated other patients suffering from fistulas. The plaintiff also called an expert witness to testify that “the [defendant’s] conduct fell below the standard of care when she failed to inform [the plaintiff] that repairing fistulas was not her specialty.” The trial judge ruled that this evidence was irrelevant and hence inadmissible. After trial, he instructed the jury that “A physician has the duty to refer a patient to a specialist or recommend the assistance of a specialist if, under the circumstances, a reasonably careful and skillful physician would do so.” The jury decided the case in the defendant’s favor. The plaintiff appealed against that verdict and her appeal reached the Supreme Court.
The Supreme Court affirmed the trial judge’s evidentiary rulings and the jury’s verdict. It held that evidence of how the defendant treated other patients could only be relevant if it showed professional incompetence, but the evidence failed to make that showing. The defendant’s lack of success in treating other patients did not even make a prima facie showing that she treated the plaintiff contrary to the customary practice. As for the plaintiff’s expert, the Court observed that he failed to provide “any opinion … on whether, under these circumstances, a reasonably careful and skillful physician would have referred [the plaintiff] or recommended that she see a specialist, as is required to establish negligence in failing to refer to a specialist” (the expert’s testimony only supported the plaintiff’s complaint about the defendant’s violation of her informed-consent rights, which was summarily dismissed on separate grounds). Based on this observation, the Court decided that the plaintiff’s malpractice allegations were unfounded.