This article answers questions that our regional patient safety/risk managers address about the potential liability of informal “curbside” consultations.
Q: Does the doctor run the risk of being sued because he or she provides a curbside consultation?
A: There are definitely risks involved if the expectations between the physicians are not clearly communicated. In a classic scenario, the consulting physician is sued by a patient that he or she has neither met nor examined—and certainly doesn’t remember.
Q: What are the legal issues raised by curbside consultations?
A: In a traditional face-to-face curbside consultation (as opposed to an electronic or written consultation), if an injury occurs to the patient and the patient can prove that the consult was the proximate cause of the injury, the physician who was consulted could also be named in the lawsuit.
There must be clear communication between the physicians that clarifies the nature of the attendant physician’s inquiry. In other words, if the conversation leads the attendant physician to rely on the consulted physician’s response when making a treatment decision and the patient suffers harm, there could be liability for both physicians. The legal questions are “was there a physician-patient relationship between the consulted physician and the patient” and “did the consulted physician owe a duty of due care to the other physician’s patient?”
Q: What kinds of cases have been litigated on the subject?
A: The cases we have seen involve an internist stopping a specialist in the hospital corridor or in the parking lot and asking for recommendations that the internist then relied on to make a treatment decision.
Q: Have there been some big awards?
A: The potential is certainly there.
Q: Curbside consults have also moved to the Internet. Does a doctor’s professional liability insurance cover consulting with other physicians through e-mail?
A: It doesn’t matter if the consultation is electronic or face-to-face. The physician’s duty to the patient is the same. However, the fact that e-mail allows physicians who are miles—or states—apart to communicate can also lead to other issues, such as privileging, credentialing, and physician licensure in the state where the patient resides.
Q: What kind of patient safety or risk management issues does this raise?
A: As far as patient safety is concerned, a verbal exchange between physicians may lack the patient’s complete clinical picture (which should include history, symptoms, medications, etc.). The consulted physician, by responding without having all of the pertinent information, may provide advice that is not in the best interests of the patient. If the patient is harmed, the consulted physician could be held liable.
In looking at sentinel events, we have learned that communication is the leading cause of bad outcomes. This is the case in curbside consults: Communication of all the necessary information to make good clinical advice is critical.
Q: What can physicians do to protect themselves?
A: Of course, a curbside consult is tempting to a busy physician since it is convenient and speedy. But those are the very reasons not to engage in this practice. If you decide to take on this risk, you must:
- Clarify the nature of the consult.
- Consider the facts not provided.
- Keep the consultation brief.
- Document the discussion, clearly stating that you, as the consulted physician, are not rendering a treatment decision that the attendant physician should rely on when treating the patient. Always issue a written report to document verbal consultations. When you are asked for an opinion, you are giving a consultation for which you can be held liable. Without a written report, the only record is the other physician’s recollection of the conversation or a handwritten note (which may be incomplete or inaccurate) made in the office record or chart. Should a claim subsequently arise, without a written report, you will probably not remember what you said or recommended.
- Make sure the attendant physician is aware that the advice given is not a treatment decision.
About the Author
This article, published in 2008, was written by Susan Shepard, MSN, MA, RN, director, patient safety education.
The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each health care provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.