Informal 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 consultation, however, has 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.
- Does the doctor run the risk of being sued because he or she provides a curbside consultation?
- 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 advice has made no written record of the encounter. 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.
- What are the legal issues raised by curbside consultations?
- In a traditional face-to-face curbside consultation (as opposed to an electronic or written 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, there must be clear communication 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, 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?”
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?
- What kinds of cases have been litigated on the subject?
- Our closed claims analyses revealed 21 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 ultimate outcome based on his or her degree of involvement (see the factors outlined above).
- Curbside consults have also moved to electronic communications. Does a doctor’s professional liability insurance cover consulting with other physicians through electronic means?
- It doesn’t matter if the curbside consultation is electronic or face-to-face; the issues with informal consultations remain the same. However, the fact that an e-mail, 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.
- What kind of patient safety or risk management issues does this raise?
- 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.). The consulted physician, by responding without having all 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 closed claims, we have learned that communication 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.
- What criteria can be used to determine whether a situation is low risk or one that requires a formal consultation?
- If the requesting physician’s questions go beyond the guidelines shown below, a formal consult should be requested instead.
- 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.
- What can physicians do to protect themselves?
- Curbside consultations are tempting to busy physicians because they are convenient and speedy. But those are the very reasons to not engage in this practice. If you decide to take on this risk, you must:
- 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.
If the attendant physician continues to insist that you render a treatment decision, we advise that you request a formal and documented consultation instead.