When a Curbside Consult Is a Liability Risk

Neil Chesanow

Disclosures

October 04, 2017

In This Article

What Is—and Is Not—a Curbside Consult

Curbside consults—sometimes called "hallway," "elevator," or "sidewalk" consults—are probably as old as medicine. Primary care physicians generally request them at one time or another, if not multiple times a week, as one study found, and specialists are usually willing to oblige.[1] But do they pose a liability risk?

That depends on how the term is defined. As physician-attorney Michael M. Wilson, MD, JD, who heads his own malpractice law firm in Washington, DC, understands it, "A curbside consultation refers to a consultation where the patient isn't identified; where the specialty physician typically doesn't review the chart, doesn't meet with the patient, doesn't talk to the patient, and doesn't examine the patient; where the specialty physician doesn't have any direct or contractual agreement with the treating physician or the hospital where the treating physician is working; where the specialist physician doesn't bill for his services; and where the treating physician is free to accept or reject the specialty physician's advice."

Doctors who strictly adhere to this definition face no legal risks, Dr Wilson says. But problems can arise when doctors stray from this definition. A specialist may offer specific advice about a specific patient, based on the incomplete information conveyed by the treating physician. Or the treating doctor may follow that advice, knowing that it was based on incomplete information. Both doctors may consider this a liability-free informal consultation, but if the patient has a bad outcome and decides to sue all of the doctors involved, a court might decide otherwise.

Says Kim Baker, JD, a trial lawyer at the Williams Kastner law firm in Seattle, Washington, and an expert in medical negligence lawsuits, "Increasingly, courts are allowing medical malpractice suits to proceed against specialists consulted informally by a patient's primary doctor, either to decide the preliminary question of whether a physician/patient relationship existed or, having made such a determination as a matter of law, to decide further whether the resulting duty of care was breached by the consultant physician."[2]

Confusion About Curbside Consults

What Dr Wilson calls "a fairly common scenario" is when a treating physician requests information or advice, and the specialist being asked considers the request a curbside consult, but it really isn't. Confusion can arise when the consultant is under contract to a hospital or other healthcare organization, or has an implied contract that creates a formal doctor/patient relationship and a resultant duty to care that the consultant may not fully appreciate.

Cincinnati, Ohio, psychiatrist Douglas Mossman, MD, has studied the liability risks of curbside consults. He recounts two similar malpractice cases, involving what the physician-defendants considered curbside consults, that illustrate the sometimes subtle distinction between the existence or absence of a doctor/patient relationship.

In the first case, a boy who had incurred an injury after falling was admitted to the hospital.[3] A pediatrician on duty phoned a neurosurgeon under contract to the hospital for treatment advice. The neurosurgeon asked whether the boy's neck was stiff, discussed differential diagnoses, and suggested doing a lumbar puncture. The neurosurgeon offered to see the boy, if asked, but he never did, nor did he bill for the telephone consult. After the boy was transferred to another hospital, a spinal cord injury was discovered, leaving the boy quadriplegic.

The boy's mother sued, claiming that her son's paralysis resulted from negligence by the first hospital and its doctors.[3] The trial court dismissed the case against the neurosurgeon, and an appeals court affirmed its ruling. Its reasoning: The neurosurgeon had not been asked to provide medical services, conduct tests, or interpret test results. "A doctor who gives an informal opinion at the request of a treating physician does not owe a duty of care to the patient whose case was discussed," the court explained.

In the second case, a patient came to the emergency department with chest pain.[3] A doctor on duty thought that heart muscle damage was possible. He telephoned a cardiologist under contract to the hospital and relayed the patient's symptoms and test results. The cardiologist didn't think that the tests indicated a cardiac event, and on the basis of that opinion, the patient was discharged. Shortly thereafter, the patient had a heart attack.

The patient then sued not only the emergency physician but also the cardiologist, who sought dismissal from the suit because he had never seen the patient, had no treatment relationship with him, and had not billed for the telephone consult.[3] But the trial judge ruled that the case against the cardiologist could proceed, and an appellate court agreed, because "an implied physician/patient relationship may arise when a physician gives advice to a patient, even if that advice is communicated through another healthcare professional."

Similarly, if you agree to cover patients for a colleague, an implied relationship exists between you and the colleague's patients in the doctor's absence. If one of those patients is hospitalized, for example, and a doctor on duty calls you with a question about patient management, it may seem like an informal request for advice, but it may not be if you have a duty to care, and your response could put you at risk for liability in the event of a bad outcome and the patient sues.

In a malpractice case that illustrates this point, a pregnant woman who was hospitalized for carpel tunnel symptoms went into labor.[4] Her ob/gyn was unavailable, but a nurse spoke to the covering partner, who recommended a treatment that was relayed to the doctor at her bedside. As a result of the treating doctor following the partner's advice, the baby died. The court held that the covering physician was legally responsible, because he gave a treatment recommendation to a patient to whom, as the covering doctor, he owed a duty to care, and therefore it was not a curbside consult.

"If the consultant has any type of responsibility for the patient, then even an informal verbal conversation, such as an on-call cardiologist answering a general question from an emergency physician about a patient, is likely to be considered by the court as a formal consultation," observes Sandeep Mangalmurti, MD, JD, a physician-attorney in Cooperstown, New York.[5]

This is also true if you are an attending physician who is supervising residents, nurse practitioners, and physician assistants, who are not empowered to act on their own, and you get a call about managing one of their patients. Even though it may seem like a curbside consult, you may have liability risk for a bad outcome.

According to Experix, a risk management firm in Seattle, your liability greatly increases if the clinical situation about which you are informally consulted is complex; the questions being asked are specific rather than general; you need to examine the patient in order to give good advice; or you know that your advice will be used to make or confirm a diagnosis, admission, or discharge decision—what trial lawyers and judges call "foreseeable reliance."[4]

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