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Page 1: Legal Risks of “Curbside” Consults

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Legal Risks of “Curbside” Consults

Victor R. Cotton, MD, JD*

“Curbside” consults, in which physicians informally solicit one another’s opinions, are anintegral part of our medical culture and invaluable to the care of our patients. Unfortu-nately, there is widespread uncertainly as to the degree of legal risk they pose and growingconcern in the risk management community that curbside consults should be limited inscope if not eliminated entirely. This places curbside consultants in a quandary, seeminglyforced to choose among their ethical obligation to patients, their sense of duty to colleagues,and their own legal well-being. The author evaluates the legal aspects of curbside consults,distinguishes them from clinical interactions with which they must not be confused, andthen provides guidance for conducting curbside consults. In conclusion, curbside consultsshould occur as often as needed and to whatever degree is necessary for proper patient

care. © 2010 Elsevier Inc. All rights reserved. (Am J Cardiol 2010;106:135–138)

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“Curbside” consults, in which physicians informally so-icit one another’s opinions, are an integral part of ouredical culture. Although curbside consults are usually

imited in scope and do not provide the same breadth ofnformation as formal consults, formal consultation is oftennavailable or impractical because of time constraints, in-urance coverage, geographic location, or patient prefer-nce. And in these situations, the delivery of optimal patientare often depends on access to the expertise of a colleagueia curbside consultation.1 Despite their value, there is arowing concern in the risk management community thaturbside consults should be “curbed,”2,3 and some medicalalpractice insurers have gone as far as recommending that

urbside consults not be rendered under any circumstances.4

hese recommendations place curbside consultants in anwkward situation, seemingly forced to choose among theirthical obligation to patients, their sense of duty to col-eagues, and their own legal well-being. In this editorial, Ivaluate the legal aspects of curbside consults, distinguishhem from clinical interactions with which they must not beonfused, and then provide guidance for conducting curb-ide consults.

ethods

PubMed was searched on November 11, 2009, for re-orts and studies that reported original data, recommenda-ions, or commentary related to informal or curbside con-ultation. WestLaw was searched on November 11, 2009,or court opinions related to informal or curbside consulta-ion. The reference lists of all identified documents werelso searched. The studies, commentaries, and court opin-ons were then subjected to scholarly analysis.

esults

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

Law & Medicine, Hershey, Pennsylvania. Manuscript received Decem-er 17, 2009; revised manuscript received and accepted February 7, 2010.

*Corresponding author: Tel: 800-808-8525; fax: 800-808-8525.

tE-mail address: [email protected] (V.R. Cotton).

002-9149/10/$ – see front matter © 2010 Elsevier Inc. All rights reserved.oi:10.1016/j.amjcard.2010.02.024

rimary care physicians obtained, on average, 3.2 curbsideonsults, and specialists received an average of 3.6 requestsor curbside consults per week. The specialties most fre-uently consulted were cardiology, gastroenterology, andnfectious diseases. Endocrinology, infectious diseases, andheumatology were requested to provide more curbside con-ults than formal consults. Pearson et al6 found that gastro-nterologists spent an average of �1 hour per week render-ng curbside consultation.

Curbside consults are generally conducted in person or byhone, although e-mail is an increasingly popular method.7,8

ost curbside consults directly relate to the current care ofn actual, rather than a hypothetical, patient. The mostommon reasons for curbside consults are to aid in selectingppropriate diagnostic tests and treatment plans and to de-ermine the need for formal consultation. Sixty percent ofurbside consults involve the acute management of patientsith new symptoms or test results. And 81% of the involvedatients are previously unknown to the consultants.5

Despite the critical role that curbside consults play inatient care, the quality of the interactions is often limited.ighty percent of specialists and 50% of primary care phy-icians believe that the information communicated duringurbside consults is inadequate, with 78% of specialists and4% of primary care physicians stating that important clin-cal detail is not described.5 These gaps create a legitimateossibility that the care that is subsequently rendered willecrease below acceptable standards and thereby raise med-cal-legal concerns, especially for the physicians who areonsulted.9

iscussion

A curbside consultant faces 2 types of medical-legal risk:ctual liability (which is rooted in established legal princi-les) and alleged liability (which refers to the filing of aawsuit against a defendant who has no legal responsibility).rom a purely academic perspective, actual liability is thenly concern. However, for the practicing physician, al-eged liability is equally important. For merely being nameds a defendant in a lawsuit, even if the allegations areithout merit, often results in a long and arduous process. In

his discussion, I therefore weigh both of these risks.

www.ajconline.org

Page 2: Legal Risks of “Curbside” Consults

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136 The American Journal of Cardiology (www.ajconline.org)

Although a plaintiff may make any number of allega-ions, actual liability for medical malpractice hinges on thexistence of a doctor-patient relationship. To successfullyue for medical malpractice, a plaintiff must first prove thate or she was in a doctor-patient relationship with theccused physician.10 The existence of a doctor-patient rela-ionship is often said to be an issue of contract. However,he analysis of whether a doctor-patient relationship exists isnly vaguely related to principles of contract law.11

Instead, the issue is better addressed with a simple rule:doctor-patient relationship arises when a physician has

rofessional contact with a patient and thereby undertakeso diagnose and/or to treat the patient.12 This critical inter-ction between doctor and patient usually takes place inerson, but it can occur by phone, fax, e-mail, or any otherorm of communication.13 It can also occur indirectly, suchs when someone calls on behalf of an ill family member,r when a physician relays a treatment recommendationhrough a member of his or her office staff.14 However,egardless of how the interaction occurs, a doctor-patientelationship does not arise until a doctor assumes someegree of responsibility for the diagnosis, care, and/or treat-ent of a patient.15 Before that critical point, a physician

as no (actual) liability for medical malpractice.Under this rule, a curbside consult, which is simply an

nformal discussion between 2 physicians, does not result inhe formation of a doctor-patient relationship. And it there-ore cannot create any (actual) malpractice liability for theonsulted physician. This legal conclusion has been repeat-dly recognized by our courts and was eloquently articu-ated by the Kansas Supreme Court in 2001: “A physicianho gives an informal opinion at the request of a treatinghysician does not owe a duty to the patient because nohysician-patient relationship is created. A physician cannote liable for medical malpractice where he or she merelyonsulted with a treating physician and nothing more. Ahysician who assumes the role of treating the patient,owever, can be liable for medical malpractice.”16

Consistent with this reasoning, a Michigan court refusedo extend liability to a specialist who was consulted curbsidebout the same patient on multiple occasions, made specificecommendations, and even reviewed the patient’s chart.he court based its decision on the facts that the specialistas not formally consulted, never wrote a note or an order

n the chart, and never contacted or examined the patient. Iteld that he was therefore not in a doctor-patient relation-hip and not legally responsible to the patient.17

In a display of great insight, an Illinois court articulatedhe importance of protecting the curbside consult. The courtoted that extending liability to include curbside consultswould have a chilling effect upon practice of medicine. Itould stifle communication, education and professional as-

ociation, all to the detriment of the patient.”18 The court’sroclamation of a link between extending liability to curb-ide consults and patient detriment is particularly notewor-hy. From a judicial perspective, it sends a message that theegal protections enjoyed by the curbside consult are un-ikely to disappear.

Although our courts have been unanimous in protectingnd even encouraging curbside consults, it is often recom-

ended that the curbside consult be curbed. This paradox is r

result of misunderstanding on the part of many medical-egal commentators, who have frequently misapplied theerm “curbside consult” to a broad range of physician-hysician interactions, most of which are not actually curb-ide consults. Because many of these misclassified interac-ions are associated with liability, a belief has arisen thaturbside consults are associated with liability. However,his is not correct. To avoid this confusion, the followingituations must not be mistaken as curbside consults.

On call for an emergency room: The act of being onall for an emergency room brings the Emergency Medicalreatment and Active Labor Act (EMTALA) into the anal-sis and adds a legal obligation that does not exist in anyther situation. Under EMTALA, an emergency room andts on-call physicians owe a duty of care to any person whoresents with an “emergency medical condition.”19 As anhio court correctly noted, “Once an on-call physician . . .

s contacted for the benefit of an emergency room patient,nd a discussion takes place between the patient’s physiciannd the on call physician regarding the patient’s symptoms,possible diagnosis and course of treatment, a physician-

atient relationship exists between the patient and the on-all physician.”20

This means that because of EMTALA, an interactionetween an emergency room physician and an on-call phy-ician regarding a patient who is in the emergency room isot a curbside consult.

“Covering” for a colleague: A physician who “covers”or a colleague assumes full responsibility for all the cov-red physician’s doctor-patient relationships. As a result,he covered patients now belong to the covering physiciannd are legally indistinguishable from his or her other pa-ients. Although the covering physician may have nevereen, examined, or treated any of the patients he or she isovering, the physician is nonetheless in a doctor-patientelationship with every one of them.

A Michigan court addressed a case in which a coveringhysician mistook his role for that of a curbside consultant.

pregnant patient developed contractions while she was athe hospital for carpal tunnel surgery. A hospital nursealled the patient’s obstetrician, but the obstetrician wasnavailable. The nurse spoke with the obstetrician’s partner,ho was “covering.” After a discussion, the physician gave

he nurse a recommendation, which was relayed to thereating physician. Unfortunately, the patient’s labor pro-ressed and resulted in fetal compromise.

The covering physician was sued for malpractice butrgued that he had never seen the patient, was not in doctor-atient relationship, and had merely participated in a curb-ide consult. In rejecting the physician’s argument, the courteasoned, “[This] case does not involve a treating physi-ian’s solicitation of an informal opinion from another phy-ician. Rather . . . a nurse called the patient’s treating phy-ician seeking directions for care, and was directed to theoctor who had assumed the responsibility of covering forhe treating physician.”21

Because the interaction was not a curbside consult but

ather a treatment recommendation for a patient to whom
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137Editorial/Legal Risks of “Curbside” Consults

he covering physician owed a duty, the court held that heas legally responsible for the recommendation.

Supervising residents and other health care provid-rs: A curbside consult involves an exchange between 2ndependent physicians, both acting on their own authoritynd free to exercise their own clinical judgment. However,esidents, nurse practitioners, and physician assistants doot have such clinical freedom. Instead, they act under theuthority of their supervising physicians, who are thus vi-ariously liable for their actions, regardless of when or if theupervising physicians actually see the patients.

In a Missouri case, a resident called her attending phy-ician about a new patient, whom the attending physicianad never seen. The attending physician instructed the res-dent to give the patient several medications, but the residentid not do so. The patient deteriorated and subsequentlyued the attending physician. Although the attending phy-ician had never seen the patient and had given appropriatenstructions to the resident, the court determined that “ahysician is responsible for the negligence of those he orhe supervises” and permitted the lawsuit to go forward.22

his means that the interaction between a resident oridlevel practitioner and a supervising physician must not

e viewed as a curbside consult.

Formally interpreting films, specimens and studies:he formal involvement of radiologists, cardiologists, pa-

hologists, and others in interpreting films, specimens, andtudies creates limited doctor-patient relationships in whichhe physicians are legally responsible for issuing propernterpretations. Although these physicians may never see,xamine, or treat the involved patients, they issue officialeports that are used to guide diagnosis and treatment. Be-ause these situations involve “formal” participation in theare of patients, they do not satisfy the “informal” require-ent of a curbside consult. This distinction, which forms

he basis of liability, was well phrased by the Tennesseeupreme Court: “In light of the increasing complexity of theealth care system, in which patients routinely are diag-osed by pathologists or radiologists or other consultinghysicians who might not ever see the patient face-to-face,t is simply unrealistic to apply a narrow definition of thehysician-patient relationship in determining whether suchrelationship exists for purposes of a medical malpractice

ase. . . . We hold that a physician-patient relationship may bemplied when a physician affirmatively undertakes to diagnosend/or treat a person, or affirmatively participates in suchiagnosis and/or treatment.”7

A curbside consult is an interaction (1) that is informal,2) that occurs between 2 physicians (neither of whom isubordinate to the other), (3) that involves a consultant whooes not have a preexisting doctor-patient relationship withhe affected patient and who is not covering for someoneho does, (4) that does not involve an on-call consultant

nd the care of a patient who is in the emergency room, (5)hat does not involve any contact between the consultantnd the patient, (6) that does not result in the generation ofwritten report, and (7) for which no payment is received.As long as all of these criteria are met, the interaction is

curbside consult that does create any actual liability for the s

onsultant. Of course, even in the absence of actual liability,here is always a possibility that the consulted physician wille sued for medical malpractice. Although such a physicianhould ultimately prevail as a matter of law, the entirerocess is best avoided. It is therefore appropriate to exam-ne the means by which a curbside consultant can minimizeis or her risk for being sued (albeit that the lawsuit woulde without merit).

The most obvious option is to simply refuse to partici-ate in curbside consults. Although occasionally recom-ended,3 this strategy has several shortcomings. First, re-

using to answer a colleague’s question potentially damagesur professional relationships, and, as a result, will eventu-lly compromise the care of our own patients. In addition,he refusal betrays our ethical obligation to the many pa-ients who place their trust in our profession.23

Finally, and most important, a refusal to provide anynformation will, to some degree, compromise the affectedatient’s care. Eventually, one of these compromises willesult in a “bad outcome.” And every bad outcome is ac-ompanied by the possibility of a lawsuit. In the end, be-ause it compromises patient care, a blanket refusal toarticipate in curbside consults may actually increase theisk for a lawsuit. Although physicians who refuse to par-icipate in curbside consults may take comfort in the facthat such lawsuits are “not theirs problem,” the reality is thathey could still be named as defendants (as this is always aossibility). In short, because a complete refusal to partic-pate in curbside consults will invariably compromise pa-ient care, it cannot be recommended.

The second option for reducing the risk for being sued is toonduct curbside consults in a manner that is brief and devoidf specifics. This strategy is commonly recommended,1,2

hich may account for the fact that 80% of consultantselieve that they do not receive sufficient information dur-ng curbside consults.4 Unfortunately, this approach isased on the flawed premise that a specific response createsore legal risk than does a vague response. However, a

urbside consultant has no actual liability for any response,e it vague, specific, right, or wrong. And just as with thetrategy of refusing to participate in curbside consults, theractice of offering vague responses will invariably com-romise patient care and thereby increase the risk for beingued. As a result, the practice of keeping curbside consultsrief and nonspecific cannot be recommended.

The most viable lawsuit avoidance strategy is to conducturbside consults in whatever manner is needed for properatient care. This approach reduces the risk for a lawsuit byiving patients the best opportunity for good results andreates no actual liability for consultants. In more complexituations, it may be appropriate for one of the physicians touggest the need for formal consultation. However, becausef patient preference, geographic limitations, or financialonsiderations, this option may not be feasible and is notequired.

Some authors recommend that consulted physicians keepritten records of curbside consults.2 However, because the

bsence of liability depends on the informal nature of aonsultant’s role, he or she should generally avoid creatingwritten record. It is commonly recommended that a con-

ulted physician’s name not be written in the patient’s

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138 The American Journal of Cardiology (www.ajconline.org)

edical record.2,24 However, this advice discounts the sub-tantial medical-legal benefit of doing so. By recording theonversation in the medical record, the consulting physicianemonstrates his or her diligence in seeking expert opinionnd bolsters the credibility of his or her chosen course ofction, both of which reduce the overall risk for a lawsuit.

Of course, it is possible that this benefit is derived at thexpense of the consulted physician, for whom the chartntry may create liability. Although this is a common con-ern, the treating physician’s chart entry creates no actualiability for the curbside consultant. Actual liability cannote created merely by writing another physician’s name in aedical record. Instead, it must arise from a doctor-patient

elationship.Although it creates no actual liability, placing the con-

ulted physician’s name in the record does create the pos-ibility that he or she will be unjustly named in a “shotgun”awsuit, wherein everyone whose name is in the record isued. Fortunately, the various tort reforms over the pastecade, combined with the overall expense of litigation, haveade shotgun lawsuits much less common. However, the sce-

ario is not impossible. Of course, the mere fact that theonsultant’s name is not in the record does not rule out theossibility that his or her involvement will be discussed atomeone’s deposition. And the consultant could be added as aefendant at that time.

In short, documenting the specifics of a curbside consultrovides significant medical-legal benefit and creates noctual liability. And because a consultant’s role will even-ually be discovered in the course of any ensuing litigation,here is little to be gained by not documenting somethinghat did indeed occur.

1. Manian FA, Jansen DA. Curbside consultations: a closer look at acommon practice. JAMA 1996;275:145–147.

2. MAG Mutual Insurance Company, Inc. Curbing the curbside con-

sult—a risk management perspective. J Med Assoc Ga 2008;97:50.

3. Burns CD. Death of the curbside consult? J Ky Med Assoc 2006;104:27.4. Block MD. Curbside consultation and malpractice policies. JAMA

1999;281:899.5. Kuo D, Gifford DR, Stein MD. Curbside consultation practices and

attitudes among primary care physicians and medical subspecialists.JAMA 1998;280:905–909.

6. Pearson SD, Moreno R, Trnka, Y. Informal consultations provided togeneral internists by the gastroenterology department of an HMO.J Gen Intern Med 1998;13:435–438.

7. Bergus GR, Sinift SD, Randall CS, Rosenthal DM. Use of an e-mailcurbside consultation service by family physicians. J Fam Pract 1998;47:357–360.

8. Luo J, Logan C, Long TP, Berkovitch L. Cyberdermatoethics I: ethi-cal, legal, technologic, and clinical aspects of patient-physician e-mail.Clin Dermatol 2009;27:359–366.

9. Perley CM. Physician use of the curbside consultation to addressinformation needs: report on a collective case study. J Med Libr Assoc2006;94:137–144.

0. Kelley v Middle Tennessee Emergency Physicians, P.C., 133 S.W.3d587, 592 (Tenn. 2004).

1. Bass v Barksdale, 671 S.W.2d 476, 486 (Tenn. Ct. App. 1984).2. Oliver v Brock, 342 So.2d 1, 3-4 (Ala. 1976).3. Cogswell by Cogswell v Chapman, 672 N.Y.S.2d 460, 462 (N.Y. App.

Div. 1998).4. St. John v Pope, 901 S.W.2d 420, 424 (Tex. 1995).5. Sterling v Johns Hopkins Hosp., 802 A.2d 440, 455 (Md. Ct. Spec.

App. 2002), cert. den., 808 A.2d 808 (Md. 2002).6. Irvin v Smith, 31 P.3d 934, 941 (Kan. 2001).7. NBD Bank v Barry, 223 Mich. App. 370, 566 N.W.2d 47 (1997).8. Reynolds v Decatur Memorial Hospital, 277 Ill. App. 3d 80, 86 (1996).9. 42 U.S.C. § 1395dd.0. McKinney v Schlatter, 692 N.E.2d 1045, 1050 (Ohio Ct. App. 1997).1. Blazo v McLaren Reg’l Med. Ctr., 2002 WL 1065710 (Mich. Ct. App.

2002), app. den., 656 N.W.2d 526 (Mich. 2003).2. Hammonds v Jewish Hosp., 899 S.W.2d 527 (Mo. Ct. App. 1995),

citing Burns v Owens, 459 S.W.2d 303, 305 (Mo. 1970).3. American Medical Association. Preamble. In: Code of Medical Ethics.

Available at: http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/principles-medical-ethics.shtml.Accessed on March 22, 2010.

4. Fox BC, Siegel ML, Weinstein RA. “Curbside” consultation andinformal communication in medical practice: a medicolegal perspec-

tive. Clin Infect Dis 1996;23:616–622.

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