Curbside Consultations: Patient Safety and Legal Risks

Risks are involved if the expectations between the practitioners are not clearly communicated at the outset of the dialogue and if the conversation is not documented in the office or hospital records contemporaneously with the events as they transpired, as required by facility protocols and professional norms. In a classic scenario, the consulting practitioner is sued by a patient the practitioner has neither personally met nor even examined—and certainly doesn’t remember months or years later after a problem has developed and litigation has been initiated.

Frequently, the consulting practitioner who offered the informal advice made no written record of the encounter that could later be utilized as probative evidence to support the basis for the recommendations. As a result, the consulting practitioner has little compelling evidence to defend the care other than possibly relying on an established routine when attempting to explain the recommendations allegedly discussed. The risk of being named in litigation increases significantly if the requesting practitioner identifies the consulting practitioner by name in the patient’s record and only summarizes the general nature of the conversation.

A consulting practitioner who provides informal advice could be named in a lawsuit if a patient suffers harm because the requesting practitioner relied on the consultant’s information to make a treatment decision. Both practitioners could be liable if the information failed to conform to community standards and was also a proximate cause of the patient’s injury, resulting in compensable injuries recognized by the jurisdiction where the care was rendered. The probability that both would be named as defendants would depend on the content of the documentation made regarding the consultation, the nature and extent of the patient’s injury, and the information revealed during litigation and more fully developed during the discovery process, including interrogatories and depositions.

The preliminary legal questions to be evaluated in cases involving curbside consultations are: (1) Did a practitioner-patient relationship exist between the consulting practitioner and the patient when the professional evaluation took place, (2) did the consulting practitioner, therefore, owe a duty of care to the patient consistent with what similarly trained practitioners would have done under the same or similar circumstances, and (3) are the alleged injuries legally compensable in the jurisdiction where the treatment was provided?

For each affirmative response to the questions below, the likelihood increases that a curbside consulting practitioner could be named as a defendant and face possible monetary exposure for civil damages should the matter proceed to trial or arbitration:

• Did the requesting practitioner provide detailed facts that included the patient’s history, comorbidities, and laboratory data consistent with the prevailing community standard?
• Did the consultant personally review any portion of the patient’s record?
• Did the consultant speak directly with the patient or conduct even a cursory preliminary physical examination at bedside?
• Did the consultant recommend or personally order any specific tests, therapies, medications, interventions, or treatment modalities or suggest additional specialty consultations to review proposed treatment options consistent with best practices, with a goal of optimum clinical results?
• Did the consultant follow up with either the requesting practitioner or the patient to determine whether any changes in clinical presentation since the initial interaction warrant changes in recommendations?
• Most importantly, did the consultant submit a bill for services rendered, which is ordinarily considered the sine qua non for establishing a legally binding practitioner-patient relationship?

Our closed claims analyses revealed multiple cases in which informal consultations took place between practitioners and the patient ultimately suffered serious cardiac, obstetric, neurologic, hemodynamic, or other untoward sequelae. Both practitioners were named in the subsequent malpractice actions. In some cases, the consulting practitioner shared in liability for the final outcome based on the degree of involvement. (See the factors outlined in the question above.)

Absent specific policy language to the contrary, it does not matter if the curbside consultation is electronic (via email, text, or telephone) or an in-person, face-to-face encounter. Due to the advent of metadata technology, the electronic footprint of the interaction, including subsequent changes or addenda, exists virtually forever. Practitioners must be prudent in making subsequent changes to the record to avoid the unintentional appearance of deception or evasion as a stratagem to avoid blame. The fact that an email, text, or other electronic format allows practitioners who are miles—or states—apart to communicate can, however, also lead to other issues, such as local rules governing privileging, credentialing, and licensure in the state where the patient resides.

Professional liability insurance does not typically cover exposure arising from operating an extraterritorial practice in a jurisdiction where the practitioner is not locally licensed. As an unexpected consequence, practitioners may experience secondary ramifications, such as reports to state licensing boards, complaints to federal regulatory and compliance agencies, or potentially the National Practitioner Data Bank.

From a patient safety standpoint, an informal verbal or electronic exchange between practitioners may inadvertently lack the patient’s complete clinical picture, which should include a detailed history, an explanation of presenting signs and symptoms, identification of prescription and nonprescription medications, comorbidities, findings on physical examination, and related relevant issues. 

By responding without having all the pertinent information, the consulting practitioner may provide advice that is not ultimately in the patient’s best interest. It may result in an incorrect diagnosis, an incorrect treatment plan, or a delay in ordering and implementing appropriate therapies. If the patient is harmed as a result, the consulting practitioner could be named as a defendant in a claim on alternative theories of culpability, including direct, vicarious, or secondary accountability.

In reviewing our closed claims data, we have learned that incomplete or poor communication among practitioners is one of the leading causes of bad outcomes as well as regulatory compliance and administrative actions.  

If the requesting practitioner’s questions go beyond the low-risk scenarios described below, a formal consult should be obtained instead, with clear documentation detailed in the medical record.

• Questions are for the general education of the requesting practitioner and are not specific to the patient.
• No request is made to confirm or make a diagnosis.
• No record review is required.
• No questions are raised about ordering specific tests or studies.
• The questions are straightforward and require only simple answers and nonspecific advice.

At the outset of the encounter, the practitioners must clearly communicate the nature of the inquiry and the type of guidance being solicited.

Be aware that consulting practitioners are not compensated for the time, expertise, and potential liability or collateral exposure involved. If you decide to assume the risk, consider the following strategies:

• Clarify the nature of the consult; advise the requesting practitioner that a curbside consultation should not be considered a formal consultation.
• Consider the facts not provided.
• Keep the consultation brief.
• Make sure the requesting practitioner is aware that the advice given is not a treatment decision.
• Refrain from using email or text messages as a method of informal consultation. (For more information, see our article “Smartphones, Texts, and HIPAA: Strategies to Protect Patient Privacy.”)

If the requesting practitioner continues to insist that you render a treatment decision or makes serial inquiries about the same patient, we advise that you firmly but respectfully request making a formal and documented consultation instead, which best avoids any misunderstandings at a later time when practitioner memory may be diminished. This approach helps promote optimal outcomes and protects practitioners from possible malpractice claims in the event of an unexpected or adverse outcome.