Exploring the Legality of Curbside Consulting in Medicine

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The answer to the question regarding legal responsibility seems to revolve around the issue of whether or not a physician-patient relationship exists.
The answer to the question regarding legal responsibility seems to revolve around the issue of whether or not a physician-patient relationship exists.

There are examples of what is not a curbside consultation and does count as a relationship. For instance, a relationship is established if you are on call and discuss a patient's symptoms, possible diagnosis or treatment … or if you are covering for a colleague and you are asked questions about a patient … or if you supervise residents or NPs and you get a call about one of their patients … or if a colleague relies on your consult for a diagnosis.5

“If test results, cultures, pathology specimens, etc are analyzed by a specialist, and advice specific to diagnosis and treatment is offered, then a physician-patient relationship is created, even if the specialist never sees the patient.” 

But, a telephone contact or consultation in which general advice is given does not place liability on the consulting physician, regardless of whether the consultant is officially “on call” or not.1

To protect your back, COPIC advises that careful language should be used in the chart to indicate that a relationship has or has not been established. If you request a consult over the phone, you should say something to the effect that “I discussed the case with Dr X who provided an opinion without formally consulting with the patient and (s)he did not personally interview or examine the patient.” Ask your mid-level provider to write this in the chart.  Further, you can document on your end “I did not formally interview, evaluate, or examine this patient.”2 It is a little extra paperwork, but effective communication is needed to minimize diagnostic errors and liability.

The Doctors Company suggests that the risk of liability is low if “questions are for education of requesting physician, no request to make or confirm a diagnosis, no record review is required, no questions about ordering specific tests or studies, the questions are straightforward and require only simple answers and nonspecific advice.”  To protect yourself, communicate! Clarify the nature of the consult, keep it brief, document the discussion, and make sure the attending physician is aware that the advice is not a treatment decision.6

Some physicians think that the best self-protection is to refuse to provide curbside consultation at all. Others feel that curbside consultation is vital for good working relationships and good medical care. In my personal experience, I have had both satisfying and unsatisfying curbside consultations. The lawyers are not the only ones to blame. In our rush to get things done with people we may have never met, we often forget that we are on the same team and appear to work against each other.

For example, I once declined to accept a direct transport from a freestanding ED, yet the patient was sent to my ED with my name as the accepting physician on the paperwork. I declined to document the conversation at the time, thinking I was being petty. But if there had been legal action, I would have been liable. This interaction has left me wary of curbside consultations and less willing to provide advice to colleagues without seeing the patient personally.

So, back to the original question. It seems that I can indeed be held liable for phone consults from our mid-level providers even if I have never seen the patient. And yes, if I am on call for that freestanding ED, I can be held responsible for treatment and management decisions. And yes, I need to depend on the referring clinician to document our exchanges accurately.

The bottom line is that it is up to me to clarify the nature of the consult, document my involvement, and encourage the requestor to do the same. It takes a little more time, thought and foresight. But doing so reduces the chance of miscommunication and may prevent future medical liability.

References

  1. Moore JJ, Matlock AG.  “Shared liability? Consultants, Pharmacists, and the Emergency Physician.  Legal Cases and Caveats.” J Emerg Med.  2014;46(5): 612-616.
  2. “How to Appropriately Ask for—and Respond to—‘Curbside' Consulations.”  Copiscope. 2011.
  3. “Reynolds v Decatur Memorial Hospital” 277 Ill App 3d 80 (Ill App Ct 4th Dist). 1996.
  4. “Irvin v Smith”. 272 Kan 112.2001. 
  5. Mossman D.  “Curbside Consults: Know Your Liability.” Current Psychiatry.  2012;11(6): 42-45.
  6. ”Curbside Consultations.” The Doctors Company. Available at:  http://www.thedoctors.com/ KnowledgeCenter/PatientSafety/articles/Curbside-Consultations.  Accessed March 15, 2017.
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