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Reprinted from ANNALS OF INTERNAL MEDICINE Vol. 103; No.4 October 1985 Reprinted in USA


Consultation and Referral Between Physicians in New Medical
Practice Environments

WILLIAM A. SCHAFFER, M.D.; and FRANK C. HOLLOMAN,Jr., J.D.; Memphis, Tennessee


The traditional exchange of medical expertise between physicians for patient benefit has been accomplished by referral. Physicians have traditionally decided when and to whom to refer patients. Health care "systems" now dominate medical practice, and their formats can alter spontaneous collegial interaction in referral. Institutional programs now pursue patient referrals as part of a marketing strategy to attract new patients who then become attached to the institution, rather than to a physician. Referral behavior can affect a physician's personal income in prepaid insurance programs where referrals are discouraged. The referring physician may bear legal liability for actions of the consultant. New practice arrangements and affiliations may place physicians in financial conflict-of-interest situations, challenge ethical commitments, and add new moral responsibility.

PHYSICIANS do not practice in isolation (1). Assistance is frequently needed from colleagues to manage patients, and those colleagues in turn require assistance to manage their patients. This exchange of expertise may be through consultation, where advice or special studies are request­ed while responsibility for a patient remains with the ini­tial physician, or through referral, where some or all re­sponsibility for the patient's care is transferred from one physician to another (2). These are two distinct modes of exchanging expertise, differing primarily in duration and permanence, for in some sense a referral may be viewed as a longer-term consultation. Both methods, however, share the common purpose of pooling medical knowledge for the patient's benefit. The terms referral and consultation will be considered interchangeably as referral hereaf­ter.

The Referral Process

The frequency of referral differs between physicians by as much as 15- to 25-fold in clinical studies (3). In clini­cal simulation studies where several physicians reviewed identical cases and made dispositions, referral rates dif­fered by 8- to 19-fold(4). Although it appears that indi­vidual physicians each have a unique "referral threshold"(5), the overall rate of patient referrals by primary-care practitioners (6) and internists (8) is 3% and 4% of clinic visits, respectively. Some important variables such as physician age and specialty (4,6), and patient age and sex (6) clearly affect referral rates.
One key factor affecting referral rates is the form of reimbursement for the physician. Use of consultative services was compared among three separate groups of physicians practicing in the same hospital who were paid for their services in different ways (8) . The physician group for a prepaid insurance plan used consultative

600 Annals of Internal Medicine. l985;103:600-605.

services the least. Unaffiliated, fee-for-service physicians ordered an intermediate number of consultations. The members of a large multi-specialty fee-for-service group practice made the most referrals of all three groups. The members of this group derived shared income from inter­nal consulting fees generated within the group. With fi­nancial incentives for use of consultation, more referrals were made (8).
Various models and adapted decision-making theories have been applied to the referral decision, in attempts to understand physician motivations and interests (9). This type of approach is helpful, but it is highly subjective and not directly applicable to clinical situations. The most pertinent information has come from clinical studies and practitioner interviews, which show that the referral deci­sion has two parts: whether to refer, and to whom to refer. One large study (3) of the referrals of general prac­titioners found that the decision to refer was made on the basis of the practitioner's personal clinical knowledge and skills, clinical judgment, and the prevailing local stan­dards of medical practice. Bosk ( 10) observed that, in clinical reality all that is required to generate a referral is uncertainty about any aspect of a case. Request or de­mand by the patient for another medical opinion will usually cause a referral, but because this request is usually interpreted by the treating physician as a failure on his or her part, it is probably under-reported in most studies.
A study (3) of the second half of the referral decision, selection of a specific consultant (done in Britain, where physician income is not substantially affected by referral activity), found that the choice of a specific consultant was based on the referring physician' s knowledge of his or her place in the local health care environment. Based on this knowledge, the physician made a judgment of the various types of specialties that might be used to treat a condition, with an assessment of their accessibility and availability. Then a judgment of the specialists them­ selves was made based on an opinion of their interaction­al style and professionalism. This judgment was balanced against the perception of the patient's values. Because the probability of a "successful" encounter between a patient and the chosen consultant is of utmost importance, the second half of the referral decision, choosing a particular consultant, can be the most difficult.
Attempts have also been made to explain consultant selection in fee-for-service settings. A ranked ordering of factors important in selecting a consultant was elicited from general practitioners and general surgeons reimbursed on a fee-for-service basis (2). Of foremost concern to these clinicians were technical issues related to patient

1985 American College of Physicians

care, and the quality of patient management. Matters of concern to the patient such as convenience and prefer­ence were ranked as less important. Factors related to the physician, such as loss of income and concern over recip­- rocal referrals were ranked as least important in the se­lection of a consultant. This ranking was derived solely from interview responses, and may not reflect actual clin­- ical practices.
Whatever their subjective ranking, in fee-for-service settings there clearly were factors that were not medical, technical, or related to the patient, but which played an integral part in the referral decision. Six of the twelve physician-related components identified in the interviews were entirely unrelated to patient care or outcome, and represented internal incentives for the referring physician (2). Concern for personal income, status in the local pro­- fessional community, and generation of reciprocal refer­- rals affect consultant selection. One cannot estimate the weight of these concerns separately, but reciprocal refer­- ral is commonly known to carry substantial weight among practicing physicians.
All physicians receiving referrals pay attention to pa­tient origin. Patients referred by other physicians provide a major source of income, contributing 8% to 15% of outpatient visits, and over 30% of inpatient visits (7, 11). Sizable numbers of these patients also become long-term patients for specialists ( 12, 13). Detailed information on the origin of these patients is commonly obtained and maintained by widely available practice-management computer software programs ( I4) or in traditional office files ( 15). Reciprocity for referrals can be based on this information, and it might be expected that perquisites extended by consultants to referring physicians, such as invitations to sporting events, entertainment, and ski lodges may be linked to this information.
Referrals are also used by new physicians to develop contacts and enter local practice networks. A targeted and judicious assignment of referrals can assist advance­- ment within the ranks of institutions or professional soci­- eties. No estimate of the percentage of referrals that are of marginal medical necessity, but are politically advanta­- geous, is available. The medical and political use of refer­rals is widely regarded as an astute business technique. So long as not carried to extreme, it is unlikely that these opportunistic practices unfavorably affect patients. Pa­tient care may actually be improved by the additional attention, observation, and cumulative physician time. These types of referral techniques do, however, generate additional charges to patients (16-18).
Health care is rapidly being reorganized into larger operating systems organized along lines of national and regional ownership, and by reimbursement programs. Physician practice, meanwhile, is increasingly dominated by large physician groups, closed associations, prepaid plans, and payer-controlled practice formats (19). The systematization of medical practice can constrain use of consultative assistance by physicians and has altered the ability of clinicians to define their practice boundaries.
In many prepaid systems administrative clearance is required before a consultation can be requested. Admin-
istrative "gatekeepers" may arbitrarily set thresholds or quotas for referrals and allow only a limited number of referrals based upon capitation, diagnostic classification, or previous consultations used for a specific patient (20). Reimbursement restrictions or organizational barriers can prohibit use of accustomed consultants and require practitioners to use unfamiliar specialists. Flexibility in the degree of consultant involvement in case management can also be sharply curtailed by policy or shortages.
Many health care systems are aggressively assembling vertically integrated corporate networks comprised of satellite hospitals, ambulatory clinics, and alliances be­ tween institutions designed to "feed" new patients into institutional programs and garner their market share. Pa­tients who are acquired by a system and "fed" into insti­- tutional programs are not attached to individual physi­- cians. These patients "belong" to the system and must be distributed among the medical staff by some means. In some cases these referrals are distributed as incentives and rewards by the institution's administration for physi­cians' cooperation with them in other matters ( 21). Insti­tutional referral-assignment programs can be effective. In one study of patients who entered an institution unat­tached to any physician, voluntary compliance by the pa­tients in keeping their referral assignments ran as high as 70%; many of these patients subsequently became excel­lent users of the physicians' offices to which they had been initially referred (22).
In this new environment for medical practice, four ar­eas of concern for physicians emerge. First, physicians independently making referral decisions must make sound patient-based decisions in radically different practice surroundings. Second, physicians in these systems must preserve the professional sovereignty essential in making referral decisions that protect patient welfare and meet their professional needs. Third, all physicians must be aware of the potential legal implications of their refer­- ral decisions. Fourth, all practicing physicians must re­view commitment to ethical traditions and evaluate new practice formats for potential conflicts of interest.
The decision to seek medical consultation or to refer a patient has traditionally been made independently by the physician treating a patient. Once the decision was made, a specialist was selected from a close circle of colleagues with whom the physician felt comfortable and was a re­spected peer. The physician and specialist shared similar backgrounds, interests, and perhaps education or post­ doctoral training.
A physician sought medical advice when necessary and for whatever reason justified that action. Assistance may have been sought because of unforeseen complications, or because new laboratory findings took the case outside the physician's usual realm of practice. By so doing, each physician set and maintained boundaries on the extent of his or her practice and defined clearly a secure range of competence. Individual medical practice was composed of cases with which a physician felt qualified, comfort­able, and interested.
These boundaries of practice were dynamic; expanding as the physician acquired new training or interests, per-

Schaffer and Holloman; Physicians and Patient Referral 601

haps stimulated by information obtained from a consulta­tion; or shrinking because cases were excluded that were seen infrequently or in which there was a lack of interest. d Medical advice was sought from whomever the physician wanted. In urban settings, advice was exchanged between peers within the same institution; and in rural settings, advice was obtained by sending the patient to a specialist in a nearby urban center. In both settings, the physician typically drew from a cadre of specialists personally known to him or her, although a new consultant could be selected on the basis of word-of-mouth recom­mendation, a joint consultation experience, or favorable encounter in a medical staff conference. Former consultants may have been replaced because of poor service, office relocation, or for personal reasons. From this arrangement the patient benefited by receiving state-of-the­ art care for problems outside of the own physician's ex­pertise from consultants respected and known by the physician.

Ethical Considerations in Referral

The practice of medicine has been defined as a "unique and intrinsically moral profession" that stands alone among the professions because its primary activity, healing, "is both in principle and in fact, distinct from the activity of gaining remuneration for healing ( 23)." Medicine is also unique in prohibiting the payment of fees for referral of patients. These split fees are an important rev­enue source for attorneys and other professionals, but are outlawed to physicians on both ethical (24-26) and statu­tory grounds (27).
The disparate treatment of physicians and lawyers re­garding the dividing of fees for common clients (patients) lies in the method of recovery of fees by the two professions. Physicians historically charge certain fees for certain services and therefore can bill common patients separately for services rendered by different physicians (25). A fee-splitting referral system for physicians is un­necessary because of the way in which medical fees are generated and billed. Fee splitting is undesirable for many reasons, but primarily for its potential to distort and subvert relationships between physicians and patients, and between physicians themselves.
Lawyers, on the other hand, take many of their cases on a contingent-fee basis, sharing the recovery with the client on a percentage basis. When there is more than one lawyer representing a client, the lawyers must necessarily share the common fee with each other on a percentage basis. The referral system for lawyers, with the splitting of fees allowed, tends to enhance the quality of legal serv­ices to the client. Fee splitting encourages a referring lawyer to bring in an expert, win the case, and still receive a fee, as opposed to handling a case outside of his area of competence and chance losing the case and thus the fee.
There are frequently rumors that some medical specialists may actually pay referring physicians in exchange for patients in highly competitive or overcrowded medical communities. No factual reports of such activity could be found in the literature. There is, however, a report of physicians paying a company to gather and refer patients. The company was paid according to the vol­ume of new patients it generated, and the patients were apparently not informed of the arrangement (28).
The American College of Physicians ethics manual
(24) cites only two ethically acceptable motivations for patient referral: when assistance is required in the care of the patient, and when consultation is requested by the patient or his or her agent. Furthermore, the manual mandates that "the physician must avoid any personal commercial conflict of interest that might compromise his loyalty and treatment of the patient. Collusion with
... colleagues for personal financial gain is morally repre­hensible" (24). Reactivated concern over financial con­flict of interest now includes physician equity ownership in hospitals where his patients are treated, satellite clinics that refer patients to him, ambulatory surgery centers where he does the surgery, and nursing homes used to board his patients. As more physicians become in-house employees of non-medical corporations, management re­sponsibilities may also generate new interest conflicts (29).
Another form of potential conflict has arisen in pre­paid health insurance plans where a physician's remune­ration may be affected by the use of consultants. There may be pressure to select the cheapest consultant rather than the best (30-32). Other insurance plans may bill the physician directly for consultant's fees, to be paid from a fund the physician administers and shares in the year-end residual balance (18,32). These arrangements place physicians in awkward positions, bearing moral responsibility for consultant's actions(33), yet gaining financially from the use of lower-priced consultants. Physicians must be vigilant in avoiding any potentially compromising monetary involvements , for "in the final analysis no external factors should interfere with the dedication of the physician to provide optimal care for his patient" (34).

Patient Referral as a Marketing Strategy

Medical advertising was first allowed in 1980 (35), and physicians of all specialties responded by advertising their services directly to the public with accelerating in­tensity (36). Increased spending by medical advertisers coupled with unexpected levels of tolerance by the profes­sion have broadened the scope of medical advertising to include Madison Avenue techniques unthinkable in the medical world 6 years ago (37). These radical develop­ments have prompted the Federal Trade Commission to consider reintervention in the medical marketplace. The agency has invited comment on its potential role and ac­tivity in implementing standards for deception and truthfulness in medical advertising (38).
Advertising by physicians in many instances now rivals
the marketing sophistication of large health care institu­tions. Several levels of presentation and communication 39), including public relations techniques, are used to "position" (40) physician services in a particular niche in the marketplace by creating an overall image that ap­peals to the public. Larger physician groups and institutions can advertise basic health services directly to con-

602 October 1985 8226; Annals of Internal Medicine; Volume 103 8226; Number 4


sumers, but it has not yet proved effective or efficient to market tertiary or specialty physician services directly to patients. These complex services are more efficiently marketed to physicians who treat consumers. Once the tar­geted physicians' commitment has been obtained through a marketing program, the patients requiring tertiary and specialty services will be referred to them.
Some of these marketing techniques may not require large sums of money to be effective. For example, a num­ber of unaffiliated specialty physicians practicing in the same city established a company to market their services to primary physicians in outlying areas. This cooperative­ly owned company attempts to cultivate patient referrals by currying favor with established and potential referring physicians (41). The company's marketing program in­cludes a monthly newsletter; free comprehensive physical examinations for referring physicians; and expensive dining, entertainment, and sporting junkets for these physicians. Additional benefit programs for referring par­ticipants, such as practice management consulting, bulk purchasing discounts, and investment services may also be provided by this group.
More customary and restrained examples of the mar­keting of referrals may include educational services, and professional courtesy for the treatment of the families of referring physicians. Excellent levels of patient care, ac­cessibility, and dignified treatment of the referring physi­cian are essential components as well.
Programs to market physician referral services also ex­ist in academic medical centers. Regional telephone refer­ral programs with toll-free numbers using university fac­ulty as consultants (42) began to spread early in the 1980s. Dozens of programs now exist allowing a physi­cian anywhere to call for an immediate and personal consultation or to make a referral directly to a faculty member (43). University hospital in-house consultative services have been revamped to provide easier access for the community physician and also for other academic specialty services. Results from one center where a gener­al medicine consultative service was restructured showed a "dramatic" increase in both the volume and the sources of referrals ( 44).
The most expensive and permanent technique to secure patient referrals is simply to purchase the source (45), as large regional hospitals have done by acquiring smaller neighboring hospitals. The smaller units serve as satel­lites, "feeding" patients to the parent institution. Free­ standing ambulatory clinics have recently emerged as sources of patients, and institutions have begun to build or acquire clinics in city-wide sites to extend the referral base for patients (46). "Physician locator" programs have been mounted with heavy media support in many cities. Run by the institutions, these programs advertise their medical staff to the public and encourage patients to call the hospital for referral to a member of their staff. Another method of assuring permanent patient sources is a joint venture between a physician group and an institu­tion. One major example of such a venture is the recent arrangement between a large regional medical group lo­cated at several sites and a national investor-owned hospital corporation in which a substantial investment made in the medical group permanently secured its patient base for the corporation's hospital (47). There are numerous examples of similar joint ventures on a smaller scale (48).
Closer scrutiny by regulatory and licensing agencies for potential conflicts of interest may be applied to non­- traditional marketing programs directed to physicians, and to business arrangements that require treating physi­cians to use only one institution or panel of consultants. More formidable obstacles to the spread of these programs may arise from consumers. Resentment and resist­ance may develop as consumers legitimately question the motivation and intent of physicians referring them to consultants under these circumstances. A loss of consum­er confidence will certainly develop if it is revealed that a physician's income is affected by his referral decisions.
Additionally, there is growing pressure for health care institutions to disclose their internal quality-of-care sta­tistics (49). Information on the outcome of specific pro­cedures, including morbidity and mortality rates, may soon be available for review and comparison by consum­ers. In this environment, even the most expensive mar­keting program could not overcome negative public opin­ion and poor quality-of-care ratings. The enduring core of any successful long-term medical marketing strategy will be the excellence of its clinical programs coupled with qualified, accessible, personable , and compassionate consultants.

Making Referrals

It must be remembered that in the patient's mind the referring physician always bears the moral responsibility for the actions of the consultant. In some cases the physi­cian may also bear the legal responsibility. Malpractice suits against physicians who have referred patients to an­ other physician where the patient was damaged in some way is not a new concept. The basis of the charge against the referring physician is that he either assisted the con­sultant in damaging the patient, or should have known of the consultant's incompetence to treat the patient properly (50). Various legal theories have been raised in the courts attempting to find the referring physician liable to the damaged patient. Depending on the facts of the case, the relationship of employer-employee (51), principal and agent (51), respondeat superior (51), master and servant (52), and partnership or joint-venture (52) have been alleged. The courts have mostly failed to find the requisite relationship to exist, by whatever theory, unless the physicians were found to be acting in concert or for a common purpose.
It is clear, however, that certain types of medical prac­tice arrangements can increase the liability exposure of the referring physician for the damaging acts of his con­sultants. If the consultant is employed in any manner by the referring physician, liability for negligent acts of the consultant is readily extended to the referrer (52,53). When referring and consulting physicians work closely to manage a patient jointly and the care is later adjudged to have been negligent, both physicians can be held liable

Schaffer and Holloman Physicians and Patient Referral 603


(54). The type and limits of a consultant's medical mal­practice insurance coverage may indirectly affect expo­sure of the referring physician to litigation over treatment rendered by the consultant. If a consultant has inadequate insurance coverage, the litigants may focus on an adequately insured referring physician in attempts to gain a better monetary settlement (55).
New applications of proximate cause may be found through attempts to include referring physicians in suits brought against their consultants, especially when there was not a strong professional relationship between the two physicians. A patient damaged by a consultant may contend that the referring physician shares the blame for the damage, because if the patient had not been referred the damage would not have occurred. The referring phy­sician would then be required to disclose the basis for selecting that consultant. Under these circumstances, any nonmedical considerations or incentives extended to the physician by the consultant would have become relevant and subject to disclosure.
If a physician refers patients to a consultant known to be inadequate or unsatisfactory, the physician may bear liability for any bad result because of negligence in rec­ommending that consultant (5O).
Consent must be obtained from the patient and record­ ed before a referral is made and not only for ethical rea­sons. In at least one case, the referring physician was not held liable for the consultant's negligence because the pa­tient had consented to the referral at the time it was made (51). Patients should not be pressured or coerced to use an institution for care simply because of internal proto­cols or proprietary interests. If a patient does not consent to an internal referral program, he or she must not be abandoned, and every effort and consideration must be extended to assist that patient in receiving care from a chosen source.
Once referral is made, the referring physician must make a clearcut clinical decision on the level of involve­ment and interaction with the consultant, and the consul­tant's treatment of the patient. Involvement should be either complete and closely coordinated, or restricted and peripheral to the consultant. In many respects, the less involved the referring physician, the less liable he or she will be for negligence and error of the consultant.
It has been difficult to assign liability to referring physicians who were ignorant of wrongdoing by the con­sultant (56) or who allowed the consultant to act inde­pendently (51). When the consultant does commit mal­practice, the referring physician has not been held liable if it was shown that a clear division of responsibility with the consultant existed (57).
Referring physicians who remain involved with consul­tant care as a part of total patient management must continually monitor the performance of their consultants, relying not only on written reports, but also patient feed­ back and their own subjective impressions. An appraisal of consultants' credentials and background should be made before referring. When newer technical procedures are contemplated, the referring physician should be fa­miliar with the consultant's training, experience, and
frequency of performance of these techniques before ad­vising a patient. A consultant excelling in standard treat­ments may not be adequately trained or experienced in state-of-the-art procedures.
In the event that the referring physician becomes aware of mismanagement, negligence, error, or incompe­tence by the consultant, prompt clinical intervention must be initiated by the referring physician. Referring physicians who observe and knowingly participate in neg­ligent care by consultants (56, 58) or observe negligence and let it go without objection (59) share responsibility for that negligence. Either correction or replacement of the consultant must be made immediately. The issues must also be addressed in the medical record, and with the patient or his agent (60).
Consultants receiving a referred patient share common ethical and legal responsibilities. There must be assur­ances that the patient willingly accepts the consultative services, and the extent of those services must be under­ stood by the patient, referring physician, and consultant. It must be clear whether an opinion, a specific procedure or treatment, joint management of the case, or full as­sumption of responsibility is desired, and whether it is temporary or permanent. The consultant can assume full responsibility only at the spontaneous and uncoerced re­quest of the patient, or at the request of the referring physician (24, 26).

Conclusion

A review of the changing medical practice environ­ment has shown that the ways in which physicians han­dle patient referrals can be different from traditional ways. Collegial interaction is being replaced in some sec­tors by systematized formats and limited-choice proto­cols. New financial opportunities, and medical and politi­cal influences affecting referral behavior are being presented to practitioners. Some of these factors have the potential of interfering with patient welfare and pose situ­ations that may push practicing physicians into ethical and financial conflicts of interest.
Physicians must closely examine their own commit­ments to professional traditions before making decisions on how they will handle patient referrals in nontradition­al situations. New practice arrangements must be closely examined for potential interest conflicts and for unac­ceptable constraints upon professional behavior. New health care organizations will generate large numbers of patients attached to these institutions rather than to phy­sicians. In caring for these patients, a physician must "avoid any business arrangement that might, because of personal gain, influence his decisions in patient care" (33).


ACKNOWLEDGMENTS: The authors thank J. Pervis Milnor Jr. , M.D., Robert I. Sandifur, M.D., John T. Vookles, M.D. , and Eric H. Cornell for editorial assistance; and Donna L. Davis, B.S., for library assistance.

Requests for reprints should be addressed to William A. Schalfer, M.D.; 500 Main Street; Louisville, KY 40201-1438.


604 October 1985 Annals of Internal Medicine;
Volume 103; Number 4


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52. lmpastato v DeGirolamo, 459 NY2d 512 (1983).
53. Graddy v New York Medical Coll, 19 A. D. 2d 426, 243 NY2d 940 (1966).
54. Sprinkle v Lemley, 243 Or 521, 414 P2d 797(1966).
55. HASTY FE III. Your most dangerous malpractice gamble. Med Econ. 1984;6l(July 9):83-6.
56. Evans v Bernhard, 23 Ariz App 413, 533 P2d 721(1975).
57. Wynne v Harvey 96 Wash 79, 165 P 67 (1917).
58. Mutschman v Petry, 46 Ohio App 525, 189 NE 658 (1933). 59. Stokes v Long 52 Mont 470, 159 P 28 (1916).
60. WARK PM. Malpractice liability of referring and consulting physicians. J SC Med Assoc. 1981;77:563-6.


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