JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 28, NUMBER 1 27

Claims Management/Cyber Liability

Minimizing the legal risk with ‘curbside’ consultation

“Curbside consultations” – in which a physician obtains insights ona medical case from another physician who has not seen the patientor reviewed the record – can yield advantages to the requestingphysician. However, shortcomings are inherent in this common typeof exchange and pose legal risk to the curbside consultant. Thisarticle provides background and practical tips that might help avoidbeing caught up in a lawsuit by surprise, or if named as a party,avoid being held culpable when the only involvement was a briefconversation with a colleague.

INTRODUCTION

Can a physician be held liable for the care of a patient he or she has never seen?

Generally, physicians know the distinction between casual advice and a formalconsult. However, that line can be blurry not only to the physician but the courtsystem, as well. The informal or “curbside” consultation is common in themedical management of patients and an important part of medical communityrelationships.

This article will offer guidance to reduce the risk and exposure of both theconsulting physician and the requestor.

Shortcomings

Although curbside consultations offer advantages to the requesting physician,shortcomings are inherent in this type of exchange and pose legal risk to the“curbside” consultant.(1)

These dangers include:

• The information provided to the consultant could be inaccurate or incomplete.

• Inappropriate advice may be given and followed.

• The consultant’s name may be recorded in the record as the source of advicewithout the consultant’s knowledge.

• The treatment provided in accordance with the consultant’s advice might beharmful to the patient, when the advice is given without a thorough reviewof the patient’s history.

• Both the consultant and the attending physician are vulnerable to a suitbased on inappropriate treatment of the patient.(2)

By Ray Kreichelt, JD, Mary Lou Hilbert, MBA, LHRM,and Deidre Shinn, MSN, MBA

continued next page

28 JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 28, NUMBER 1

This article is not intended to discourage participation ininformal curbside consultation. Rather, it is intended toprovide background and practical tips that might help avoida surprise lawsuit or, if named as a party, avoid culpability whenthe only involvement was a brief unmemorable conversationwith a colleague about a patient that that was never seen,never examined and never billed.

Physician-patient relationship

The existence of a physician-patient relationship is thepredicate for medical malpractice liability in many juris-dictions. (3) In the absence of this relationship, a physiciangenerally owes no legal duty and cannot be held liable to a non-patient.

The physician-patient relationship prerequisite in medicalmalpractice litigation distinguishes this litigation fromrun-of-the-mill personal injury litigation. The common-lawduty to refrain from negligently injuring others generallyrequires no prior relationship between the parties. By contrast,professionals do not owe a duty to exercise their particulartalents, knowledge and skill on behalf of every person theyencounter. Thus the duty to treat a patient with properprofessional skill flows from a consensual relationshipwhere the patient seeks the assistance of a physician andthe physician accepts the person as a patient.(4)

Establishment of a physician-patient relationship is typicallycreated when the physician and the patient voluntarilyenter into a contract, either written or implied, whereinthe physician agrees to render medical care and treatmentto the patient for a fee. Typically, the scope and nature ofthe relationship is not explicitly agreed upon at the outset.Rather, the relationship evolves and is inferred from thecommunications and conduct of the physician and thepatient.(5)

The relationship may, however, also arise from a gratuitousundertaking to render medical care and treatment to a patientwithout any form of agreement, promise or expectationon the part of the physician or the patient for a paymentof a fee.(6) And, an implied relationship may be foundwhere the physician gives advice through another physician.

It has become common in today’s highly charged litigationatmosphere for plaintiffs to name numerous defendants inmedical malpractice actions, no matter how tenuous thedefendant’s role was in relation to the plaintiff ’s care andtreatment. Curbside consulting physicians are often drawninto the mix.

The good news is that courts generally view informalcurbside consultations as a service to a medical colleague,not as providing care to a patient.(7) However, it is up to thecourt to determine as a matter of law, what characteristicsmust be present for a relationship to give rise to a duty,but it is essentially a question for the jury to determinewhether a relationship has been established.

Identifying the curbside consult

Indications of an informal curbside consultation includethe following, although no single feature establishes thatthere it is an informal consultation or that there is nolegal relationship with the patient:

• The consulting physician was not provided the nameof the patient.

• The consulting physician has not examined thepatient.

• The consulting physician has no direct communicationwith the patient.

• The consulting physician does not review the patient’smedical records, including films or labs.

• The consulting physician has not made an entry in thepatient’s medical records.

• The consulting physician has no obligation for formalconsultation, e.g., on-call obligations.

• The consulting physician receives no payment for services.

• The consulting physician gives opinions and advicesolely to the treating physician.

• The treating physician remains in control of thepatient’s care and treatment.(8)

CONCLUSION

Published risk prevention and control recommendationssuggest that when informally consulted, the physician should:

• Never give specific treatment advice on a patient nevermet, seen or examined. It must be clear that anyresponses are to hypothetical situations, with limitedinformation.

• Keep curbside consultations brief and simple. For morecomplex cases such as those requiring consideration oftwo or more confounding variables or detailed discussionof the patient’s history and physical examination findings,formal consultation should be considered.

• Recommend formal consultation when a curbside con-sultation regarding a specific patient has to be repeated.

• Ask that the physician’s name not be recorded in thepatient’s medical record.(9)

JOURNAL OF HEALTHCARE RISK MANAGEMENT • VOLUME 28, NUMBER 1 29

Putting it in writing

As a general rule, a written record summarizing the discussionshould be discouraged. If a discussion with a colleagueseems to warrant written memorializing, that may be asignal to recommend a formal consultation so that a notecan be made in the patient’s record.

Also, curbside consultations by e-mail are discouraged.Special concerns are posed by e-mail, not the least ofwhich is that a record of the communication is created,and distribution cannot be restricted. E-mail may men-tion the patient’s name or attach portions of the patient’schart, including studies, which imply greater connectionto the patient than would be warranted if the communi-cation occurred in the hallway or by phone. If communi-cating to an inquiry by e-mail, physicians should beadvised to take time to review what they are saying beforethey hit the “send” button. They should not suggest agreater degree of involvement with the patient than whatis intended. A standard disclaimer paragraph can helpmake it clear that the writer is not giving advice regardingany particular patient, but rather is responding informallyto a general inquiry and would be happy to see thepatient formally in consultation.(10)

ABOUT THE AUTHORS

Ray Kreichelt, JD, is Litigation Claims Manager, NemoursFoundation, Jacksonville, FL; Mary Lou Hilbert, MBA,LHRM, is Director of Risk Management-Florida, NemoursChildren’s Clinic, Orlando, FL; and Deidre Shinn, MSN,MBA, is Director of Risk Management-Alfred I. DuPontHospital for Children and Nemours Children’s ClinicDelaware Service Area, Wilmington, DE.

REFERENCES

1. Manian, F.A., Janssen, D.A. “Curbside consultation: Acloser look at a common practice,” JAMA, Vol. 275,No 2, pp. 145-147. January 10, 1996.

2. Washington University, School of Medicine, RiskManagement Program: “Risk Prevention and Control:Informal ‘Curbside’ Consultations.” UpdatedSeptember 24, 1999.

3. Kananen v. Alfred I. duPont Institute of the NemoursFoundation, 796 A.2d 1 (Del. Super. 2000); Fortino v.Stouffer, 17 Pa. D. & C. 4th 526, 1993 WL 668986.January 16, 1993; Ryans v. Lowell, 197 N.J. Super.266, 484 A.2d 1253 (N.J.Super.A.D.1984); Sterling v.Johns Hopkins Hospital, 145 Md.App.161, 802 A.2d440 (Md. App. 2002); Torres v. Sarasota County PublicHospital Board, – So.2d –, 2007 WL 1094346 (Fla.App. 2 Dist.), 32 Fla. L. Weekly D973. 2007.

4. Baker, K., Thomas, K. “Doctor’s legal duty – erosion ofthe curbside consult,” Mondag Business Briefing.November 5, 2003.

5. Olick, R.S., Bergus, G.R. “Malpractice liability forinformal consultations.” Family Medicine, pp. 476-481. July-August 2003.

6. 6 Fla. Prac., Personal Injury & Wrongful DeathActions, § 12.12.

7. Olick, R.S. supra.

8. Olick, R.S. supra.

9. Manian, F.A., Jansen, D.A. supra; Physician’s RiskManagement Update, Volume XIII, Number 2,“Minimize risks during curbside consults.”March/April 2002.

10. Harvard CRICO RMF. May 2007.