When a Curbside Consult Is a Liability Risk

Neil Chesanow

Disclosures

October 04, 2017

In This Article

When to Ask for a Formal Consultation

At what point does a curbside consult start to shift away from being an informal request for information and begin to look like the consultant's formal involvement is a good idea? The degree of specificity required to answer the questions posed by the patient's doctor is the surest indication, experts say.

"The closer a physician gets to providing very specific information—what dose to start with, when to draw labs and what other kinds of studies to get, and what to do specifically with a particular patient—the closer that physician is coming to being part of the care team, as opposed to just providing general information," Dr Mossman says.

If the patient's doctor comes to you a second time for advice, if the clinical picture is complex, or if the requesting physician presses you for specific guidance or a treatment decision, a request for a formal consultation is in order.

"Any doubts that a curbside consult is evolving into a formal consulting relationship should be resolved in favor of the latter so that a more reliable and complete exchange of information can occur," Baker advises.[2] "The advantage is obvious—it will decrease the consultant's risk for medical malpractice liability and simultaneously optimize the patient's care."

Should You Document a Curbside Consult?

Should a curbside consult be documented? There are two schools of thought.

"Making a notation in a patient's record documents the treating doctor's diligence and may provide a measure of liability protection in a malpractice action," Dr Mossman says.[3] "Doing this, however, exposes the identity of the consultant, who might be named among the defendants in a lawsuit."

If the consultant is the one doing the documenting, Dr Mossman adds, "it might suggest that the consultation was more than the sort of informal information-sharing implied by the term 'curbside.'"[3]

For this very reason, Ray Kreichelt thinks that consultants should not document a curbside consult. "If a discussion with a colleague seems to warrant written memorializing," he maintains, "that may be a signal to recommend a formal consultation so that a note can be made in the patient's record."[8]

But most experts come down on the side of documenting, on the theory that it's better to be safe than sorry.

Kim Baker urges consultants not only to document curbside consults but also to include all of the facts, including "the date of the inquiry, the inquiring physician's name, the nature of the inquiry, and any advice given."[2]

"Physicians who seek an informal consult are most likely documenting that they sought and followed the advice of an 'expert' regarding treatment," Baker reasons.[2] "If the treating physician is sued, the consultant may be impleaded. Without a record of the advice given, the consultant will be defenseless."

In the treating doctor's note, should the consultant be identified by name?

If the request is verbal, remind the treating physician that this is not a formal consultation, and the consulted physician's name should not be included in the patient chart, say the Experix risk managers.[4]

But omitting a consultant's name doesn't guarantee that the doctor's involvement won't be discovered in the course of litigation. "Treating doctors who get sued often are asked during their depositions about whether they talked with anyone about the case, and they have to answer honestly," Dr Mossman points out.[3]

If you want to include the consultant's name in your note, as a professional courtesy, ask the doctor's permission, Dr Mossman says. "'Is it okay if I make a note in the chart that I spoke to you, but that I presented the case anonymously?'" he suggests. "When I've done that, colleagues have said, 'Yes, that's fine.'"

The doctor who requests a curbside consult can make a note in the patient's chart in the electronic health record (EHR). But what about the consultant? If it's a true curbside consult, the consultant probably won't have a chart for the patient in question—or even know the patient's name. Where does the consultant's note of the encounter go if there is no provision for it in the consultant's EHR?

Dr Mossman proposes a low-tech solution.

"You get out a piece of paper and write down what it is the treating doctor told you," he says. "Then you put the piece of paper in the drawer and keep it until you think it will no longer matter."

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