Legal Risks of “Curbside” Consults

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  • Legal Risks of Curbside ConsultsVictor R. Cotton, MD, JD*

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    000doin. The reference lists of all identified documents wereo searched. The studies, commentaries, and court opin-s were then subjected to scholarly analysis.sults

    Curbside consults occur frequently and consume consid-ble amounts of physician time. Kuo et al5 found that

    DiscussionA curbside consultant faces 2 types of medical-legal risk:

    actual liability (which is rooted in established legal princi-ples) and alleged liability (which refers to the filing of alawsuit against a defendant who has no legal responsibility).From a purely academic perspective, actual liability is theonly concern. However, for the practicing physician, al-leged liability is equally important. For merely being namedas a defendant in a lawsuit, even if the allegations arewithout merit, often results in a long and arduous process. Inthis discussion, I therefore weigh both of these risks.

    Law & Medicine, Hershey, Pennsylvania. Manuscript received Decem-17, 2009; revised manuscript received and accepted February 7, 2010.*Corresponding author: Tel: 800-808-8525; fax: 800-808-8525.E-mail address: victor@lawandmed.com (V.R. Cotton).

    2-9149/10/$ see front matter 2010 Elsevier Inc. All rights reserved. www.ajconline.org:10.1016/j.amjcard.2010.02.024Curbside consults, in which physicians infintegral part of our medical culture and invnately, there is widespread uncertainly as toconcern in the risk management communityscope if not eliminated entirely. This places cforced to choose among their ethical obligatioand their own legal well-being. The author evdistinguishes them from clinical interactionsthen provides guidance for conducting curbsshould occur as often as needed and to whacare. 2010 Elsevier Inc. All rights reserv

    Curbside consults, in which physicians informally so-it one anothers opinions, are an integral part of ourdical culture. Although curbside consults are usuallyited in scope and do not provide the same breadth oformation as formal consults, formal consultation is oftenavailable or impractical because of time constraints, in-ance coverage, geographic location, or patient prefer-

    ce. And in these situations, the delivery of optimal patiente often depends on access to the expertise of a colleaguecurbside consultation.1 Despite their value, there is a

    wing concern in the risk management community thatrbside consults should be curbed,2,3 and some medicallpractice insurers have gone as far as recommending that

    rbside consults not be rendered under any circumstances.4ese recommendations place curbside consultants in ankward situation, seemingly forced to choose among theirical obligation to patients, their sense of duty to col-gues, and their own legal well-being. In this editorial, Ialuate the legal aspects of curbside consults, distinguishm from clinical interactions with which they must not be

    nfused, and then provide guidance for conducting curb-e consults.

    ethodsPubMed was searched on November 11, 2009, for re-rts and studies that reported original data, recommenda-ns, or commentary related to informal or curbside con-tation. WestLaw was searched on November 11, 2009,ly solicit one anothers opinions, are anle to the care of our patients. Unfortu-gree of legal risk they pose and growingcurbside consults should be limited ine consultants in a quandary, seeminglyatients, their sense of duty to colleagues,es the legal aspects of curbside consults,which they must not be confused, andnsults. In conclusion, curbside consultsdegree is necessary for proper patientm J Cardiol 2010;106:135138)

    mary care physicians obtained, on average, 3.2 curbsidensults, and specialists received an average of 3.6 requests

    curbside consults per week. The specialties most fre-ently consulted were cardiology, gastroenterology, andectious diseases. Endocrinology, infectious diseases, andumatology were requested to provide more curbside con-ts than formal consults. Pearson et al6 found that gastro-terologists spent an average of 1 hour per week render-

    curbside consultation.Curbside consults are generally conducted in person or byone, although e-mail is an increasingly popular method.7,8st curbside consults directly relate to the current care ofactual, rather than a hypothetical, patient. The most

    mmon reasons for curbside consults are to aid in selectingpropriate diagnostic tests and treatment plans and to de-mine the need for formal consultation. Sixty percent ofrbside consults involve the acute management of patientsth new symptoms or test results. And 81% of the involvedtients are previously unknown to the consultants.5Despite the critical role that curbside consults play in

    tient care, the quality of the interactions is often limited.hty percent of specialists and 50% of primary care phy-

    ians believe that the information communicated duringrbside consults is inadequate, with 78% of specialists and% of primary care physicians stating that important clin-l detail is not described.5 These gaps create a legitimatessibility that the care that is subsequently rendered willcrease below acceptable standards and thereby raise med-

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    136 The American Journal of Cardiology (www.ajconline.org)Although a plaintiff may make any number of allega-ns, actual liability for medical malpractice hinges on theistence of a doctor-patient relationship. To successfully

    for medical malpractice, a plaintiff must first prove thator she was in a doctor-patient relationship with theused physician.10 The existence of a doctor-patient rela-

    nship is often said to be an issue of contract. However,analysis of whether a doctor-patient relationship exists is

    ly vaguely related to principles of contract law.11Instead, the issue is better addressed with a simple rule:octor-patient relationship arises when a physician hasfessional contact with a patient and thereby undertakesdiagnose and/or to treat the patient.12 This critical inter-ion between doctor and patient usually takes place inrson, but it can occur by phone, fax, e-mail, or any otherm of communication.13 It can also occur indirectly, suchwhen someone calls on behalf of an ill family member,when a physician relays a treatment recommendationough a member of his or her office staff.14 However,ardless of how the interaction occurs, a doctor-patientationship does not arise until a doctor assumes somegree of responsibility for the diagnosis, care, and/or treat-nt of a patient.15 Before that critical point, a physician

    s no (actual) liability for medical malpractice.Under this rule, a curbside consult, which is simply anormal discussion between 2 physicians, does not result information of a doctor-patient relationship. And it there-

    e cannot create any (actual) malpractice liability for thensulted physician. This legal conclusion has been repeat-ly recognized by our courts and was eloquently articu-ed by the Kansas Supreme Court in 2001: A physiciano gives an informal opinion at the request of a treatingysician does not owe a duty to the patient because noysician-patient relationship is created. A physician cannotliable for medical malpractice where he or she merely

    nsulted with a treating physician and nothing more. Aysician who assumes the role of treating the patient,wever, can be liable for medical malpractice.16Consistent with this reasoning, a Michigan court refusedextend liability to a specialist who was consulted curbsideout the same patient on multiple occasions, made specificommendations, and even reviewed the patients chart.e court based its decision on the facts that the specialists not formally consulted, never wrote a note or an orderthe chart, and never contacted or examined the patient. Itld that he was therefore not in a doctor-patient relation-p and not legally responsible to the patient.17In a display of great insight, an Illinois court articulatedimportance of protecting the curbside consult. The court

    ted that extending liability to include curbside consultsould have a chilling effect upon practice of medicine. Ituld stifle communication, education and professional as-iation, all to the detriment of the patient.18 The courtsclamation of a link between extending liability to curb-e consults and patient detriment is particularly notewor-. From a judicial perspective, it sends a message that theal protections enjoyed by the curbside consult are un-ely to disappear.Although our courts have been unanimous in protectingd even encouraging curbside consults, it is often recom-nded that the curbside consult be curbed. This paradox is ratesult of misunderstanding on the part of many medical-al commentators, who have frequently misapplied them curbside consult to a broad range of physician-ysician interactions, most of which are not actually curb-e consults. Because many of these misclassified interac-ns are associated with liability, a belief has arisen thatrbside consults are associated with liability. However,s is not correct. To avoid this confusion, the followinguations must not be mistaken as curbside consults.

    On call for an emergency room: The act of being onl for an emergency room brings the Emergency Medicaleatment and Active Labor Act (EMTALA) into the anal-s and adds a legal obligation that does not exist in anyer situation. Under EMTALA, an emergency room andon-call physicians owe a duty of care to any person whosents with an emergency medical condition.19 As anio court correctly noted, Once an on-call physician . . .contacted for the benefit of an emergency room patient,d a discussion takes place between the patients physiciand the on call physician regarding the patients symptoms,ossible diagnosis and course of treatment, a physician-

    tient relationship exists between the patient and the on-l physician.20This means that because of EMTALA, an interaction

    tween an emergency room physician and an on-call phy-ian regarding a patient who is in the emergency room ist a curbside consult.

    Covering for a colleague: A physician who coversa colleague assumes full responsibility for all the cov-

    d physicians doctor-patient relationships. As a result,covered patients now belong to the covering physician

    d are legally indistinguishable from his or her other pa-nts. Although the covering physician may have nevern, examined, or treated any of the patients he or she is

    vering, the physician is nonetheless in a doctor-patientationship with every one of them.A Michigan court addressed a case in which a coveringysician mistook his role for that of a curbside consultant.pregnant patient developed contractions while she was at

    hospital for carpal tunnel surgery. A hospital nurseled the patients obstetrician, but the obstetrician wasavailable. The nurse spoke with the obstetricians partner,o was covering. After a discussion, the physician gave

    nurse a recommendation, which was relayed to theating physician. Unfortunately, the patients labor pro-ssed and resulted in fetal compromise.The covering physician was sued for malpractice butued that he had never seen the patient, was not in doctor-

    tient relationship, and had merely participated in a curb-e consult. In rejecting the physicians argument, the courtsoned, [This] case does not involve a treating physi-ns solicitation of an informal opinion from another phy-ian. Rather . . . a nurse called the patients treating phy-ian seeking directions for care, and was directed to thector who had assumed the responsibility of covering for

    treating physician.21

    Because the interaction was not a curbside consult buther a treatment recommendation for a patient to whom

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    137Editorial/Legal Risks of Curbside Consultscovering physician owed a duty, the court held that hes legally responsible for the recommendation.

    Supervising residents and other health care provid-: A curbside consult involves an exchange between 2ependent physicians, both acting on their own authority

    d free to exercise their own clinical judgment. However,idents, nurse practitioners, and physician assistants dot have such clinical freedom. Instead, they act under thethority of their supervising physicians, who are thus vi-iously liable for their actions, regardless of when or if theervising physicians actually see the patients.In a Missouri case, a resident called her attending phy-ian about a new patient, whom the attending physiciand never seen. The attending physician instructed the res-nt to give the patient several medications, but the resident

    not do so. The patient deteriorated and subsequentlyd the attending physician. Although the attending phy-ian had never seen the patient and had given appropriatetructions to the resident, the court determined that aysician is responsible for the negligence of those he or

    supervises and permitted the lawsuit to go forward.22is means that the interaction between a resident ordlevel practitioner and a supervising physician must notviewed as a curbside consult.

    Formally interpreting films, specimens and studies:e formal involvement of radiologists, cardiologists, pa-logists, and others in interpreting films, specimens, anddies creates limited doctor-patient relationships in which

    physicians are legally responsible for issuing propererpretations. Although these physicians may never see,amine, or treat the involved patients, they issue officialorts that are used to guide diagnosis and treatment. Be-se these situations involve formal participation in thee of patients, they do not satisfy the informal require-nt of a curbside consult. This distinction, which formsbasis of liability, was well phrased by the Tennessee

    preme Court: In light of the increasing complexity of thealth care system, in which patients routinely are diag-sed by pathologists or radiologists or other consultingysicians who might not ever see the patient face-to-face,s simply unrealistic to apply a narrow definition of theysician-patient relationship in determining whether suchelationship exists for purposes of a medical malpracticee. . . . We hold that a physician-patient relationship may beplied when a physician affirmatively undertakes to diagnose/or treat a person, or affirmativ...

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