Exploring the Legality of Curbside Consulting in Medicine
The answer to the question regarding legal responsibility seems to revolve around the issue of whether or not a physician-patient relationship exists.
This article began as an argument among colleagues. As hospitalists, our group is occasionally expected to cover a mid-level practitioner group — usually by responding to phone calls from their office, “curbside” questions from the Labor and Delivery floor and by providing formal consultations. One of the members of our group questioned the medical-legal risks of providing the curbside coverage.
One of our members was consulted by phone to advise on a patient in a freestanding ED without the opportunity of being able to examine the patient.
I am sure that this often happens to most doctors and, in general, that we are happy to provide answers to questions and to help our colleagues. But are we setting ourselves up for medical-legal risk? I was tasked to find out.
I started with my employer, who confidently stated that since we have not met the patients and they are physically in a separate building from where we work, there is no medical-legal risk or responsibility.
Not so fast.
Despite what I was told, there is no “black-and-white” or “one-size-fits-all” answer to this question, and I could find very little recent literature that offered helpful clarification. But here is what I did find.
The answer to the question regarding legal responsibility seems to revolve around the issue of whether or not a physician-patient relationship exists. However, deciding whether such a relationship exists is not always simple.
Does the relationship exist if there is an agreement to have a relationship? “A physician-patient relationship is broadly defined as an affiliation in which the patient seeks care, and the physician agrees to provide care.”1 However, establishing that this agreement exists may be less clear for consultants, as they may not “agree to assume care for a patient.” Some courts have ruled that the doctor must show “intent of care” or an “affirmative action” to create a physician-patient relationship. The physician has to clearly indicate, “I will take care of you.”
Does a relationship exist if there is medical decision making? Some courts have ruled that if no medical decision or treatment decision is offered, a physician-patient relationship is not created, and no responsibility for the physician's fate is transferred.1
Does a relationship exist if there is physical contact? According to the COPIC Insurance Company, it is possible to establish a physician-patient relationship even if you have never physically seen the patient.2 Some legal cases have upheld that a physician-patient relationship exists even when the patient has not been physically examined by the physician — such as is the case with a pathologist or a curbside consult in the ED who reviews the patient's EKG and history but does not examine the patient.1 Finally, it doesn't matter if it's face-to-face, via telephone, or e-mail. Any verbal communication will do.
In general, most courts have asserted that curbside consults do not create a physician-patient relationship.2 Most judges recognize that this type of communication improves patient care and they do not want to discourage the practice by making physicians fear liability.3-5