Curbside Consultations: Patient Safety and Legal Risks

Susan Shepard, MSN, RN, Senior Director, Patient Safety and Risk Management Education; and Richard Cahill, JD, Vice President and Associate General Counsel, The Doctors Company

Informal, or “curbside,” consultations among practitioners represent an important part of clinical practice. They can increase knowledge among physicians and may also improve care and treatment of patients who present with complex comorbidities. Informal consultations, however, have inherent risks for the consulting physician. This article answers questions that our patient safety risk managers routinely address about the potential liability of informal curbside consultations.

Risks are involved if the expectations between the physicians are not clearly communicated at the outset of the dialogue. 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 months or years later after a problem has developed and litigation has been initiated.

Invariably, the physician offering his or her informal advice has made no written record of the encounter that may be reviewed to support the basis for the recommendations. As a result, the consulting physician has little evidence to defend the care other than possibly relying on an established routine or habit and practice when attempting to explain the recommendations that were discussed. The risk of being named in litigation increases significantly if the physician seeking advice identifies the consulting physician by name in the patient’s medical record and summarizes the general nature of the conversation.

In an informal or curbside consultation, if an injury to the patient occurs and the patient can prove that the information provided was a proximate cause of the injury, the physician who was consulted could also be named in the lawsuit as a culpable party.

At the outset of the encounter, a clear communication must take place between the physicians that identifies the nature of the inquiry and the type of guidance being solicited. In other words, if the conversation leads the attendant physician to rely on the consulting physician’s response when making a treatment decision and the patient suffers harm, both physicians could be liable. The legal questions are (1) was there a physician-patient relationship between the consulted physician and the patient, and (2) did the consulted physician owe a duty of due care to the other physician’s patient?

For each affirmative response to the questions below, the likelihood increases that a curbside consultant will be named as a defendant:

  • Did the attending physician provide detailed facts that included the patient’s history, comorbidities, and laboratory data?
  • Did the consultant personally review any portion of the patient’s chart?
  • Did the consultant speak directly with the patient or conduct even a cursory physical examination at bedside?
  • Did the consultant recommend or order any specific tests, therapies, medications, or other treatment modalities?
  • Did the consultant follow up with either the attending physician or the patient?
  • Most importantly, did the consultant submit a bill for services rendered?

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

It does not matter if the curbside consultation is electronic or face-to-face; the issues with informal consultations remain the same. However, the fact that an email, text, or other electronic format 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. Professional liability insurance does not typically cover a physician for practice in a state where the physician is not licensed.

As far as patient safety is concerned, a verbal or electronic exchange between physicians may lack the patient’s complete clinical picture (which should include history, symptoms, medications, etc.). By responding without having all of the pertinent information, the consulted physician 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 closed claims, we have learned that incomplete or poor communication among providers is one of the leading causes of bad outcomes. This represents a major risk with informal consultations: Communication of all the necessary information to obtain and provide good clinical advice is critical.

If the requesting physician’s questions go beyond the scenarios described below, a formal consult should be requested instead.

Low risk

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

Curbside consultations are tempting to busy physicians because they are convenient and speedy—the very reasons to not engage in this practice. If you decide to take on this risk, consider the following strategies:

  • Clarify the nature of the consult; advise the requesting physician that a curbside consultation should not be considered a formal consultation.
  • Consider the facts not provided.
  • Keep the consultation brief.
  • Make sure the attendant physician 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 attendant physician continues to insist that you render a treatment decision, we advise that you request a formal and documented consultation instead.

For additional information, contact the Department of Patient Safety and Risk Management at (800) 421-2368 or by email.

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 healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

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