The scene is all too common: An internist is walking down the hospital hallway, on her way to grab a quick cup of soup and is stopped by a colleague who asks her opinion about a patient the colleague is treating; the internist has never seen the patient and has no prior knowledge of this patient's medical history or treatment course. The internist and her colleague end up discussing the colleague's patient for 8 minutes. What, if any, potential liability exists for the internist for this common type of 'curbside consult,' which occurs frequently and is often helpful to practitioners?
Formal vs. Informal Consultations
The level of formality in the consultation will dictate the level of potential professional liability to the consulting provider. In a formal consultation, the treating physician refers the patient to another physician (the "consultant") for formal guidance related to the patient's care and treatment. The consultant performs the evaluation—in-person or by reviewing treatment records, studies, test results, or other pertinent information—and documents the evaluation either in the patient's record or by providing a written opinion or report; however, the consultant does not write orders, write prescriptions, or make other treatment decisions. Additionally, the consultant usually is compensated for his work.
On the other hand, in an informal consultation, typically referred to as a “curbside,” “hallway,” “elevator,” or “sidewalk” consult, the treating physician seeks informal information or advice about patient care or the answer to an academic question from a colleague, usually one with particular expertise related to the physician's question.
Curbside consults are typically based on the treater's presentation of the case or by posing direct questions. The colleague consultant does not see the patient, does not review the chart, and is not paid for his consultation.
Potential Professional Liability Arising from Curbside Consults
Risk of liability from true curbside consults is minimal; however, there are important considerations to ensure that a consultant physician does not become a treating participant in the subject patient's care. Most importantly, a consulting physician should define his/her role in a curbside consult for the patient's and his/her own sake.
Importantly, liability stems from a physician-patient relationship and the subsequent duty of care owed to the patient; because curbside consults do not result in the creation of a physician-patient relationship, liability is usually non-existent. Even if a court were to find a physician-patient relationship existed between a patient and a curbside consultant, a plaintiff would need to prove the consultation was negligently performed and caused his/her injury in order to prevail in a lawsuit, which is not an insignificant burden of proof considering the physician seeking the curbside consult remains free to exercise her or his own professional judgment in accepting, rejecting, or otherwise relying on the consultant's advice. Nevertheless, there are other independent actions that a consulting physician may independently take that could open the consultant to liability.
Especially in states such as Idaho, where substantial numbers of physicians in a number of medical sub-specialties are lacking in rural areas, many primary care physicians treat their patients without the benefit of formally involved specialists in the care of their patients. Instead, to address more complex patient needs, primary care physicians often attempt to consult informally with specialists; however, many specialists are reluctant to provide informal consultations for fear of being named as defendants in lawsuits. This very situation prompted the Idaho legislature to pass Senate Bill 1399 ( S.B. 1399, 60th Leg., 2nd Sess. (Idaho 2010)), which was signed by the Governor into Session Law Chapter 353 on April 12, 2010. This Bill added to the existing law relating to physicians and surgeons that no physician-patient relationship would be created for certain informal consultations. The outcome of the enactment of this Bill was that, for purposes of malpractice liability, a physician who provides a consultation for another physician, but does so without seeing or examining the patient and without expectation of payment for the consultation, is expressly excluded from the definition of a physician-patient relationship; the legislation further provided that such a physician may not be put on a special verdict to support a comparative fault defense absent an independent basis for liability. Nevertheless, even with this insulating layer, there are a number of valuable considerations and steps consulting physicians--and those seeking the consult--can take.
In the case of a curbside consultation, the physician giving the opinion is often viewed as providing a service to the physician seeking consultation rather than to the patient. In fact, a patient may not even know if or when her or his physician obtained a curbside consult.
Of course, seeking consultation from a colleague is one of the best risk-management strategies available. Seeking curbside consults with colleagues when appropriate shows thoughtfulness by the treating physician, and patient care benefits when physicians are able to obtain informal consultation.
Alternatively, when asked for a curbside consult, it is wise for the consulted provider to confirm exactly what is being asked, and have a low threshold for when to suggest the asking provider obtain a formal consultation.
Increasingly, audit trails from the electronic medical record are discoverable and exchanged during litigation. These audit trails contain a record of everyone who accesses a patient's record, including detailed information of the date, time, and specific information accessed. With this audit trail detail--as well as associated metadata--able to show all activity involving a patient's medical record, a physician accessing records while claiming no physician-patient relationship and/or duty will be faced with having to justify and explain their reason for reviewing that patient's medical chart? A consulting physician would, therefore, be wise to avoid accessing a patient's medical record, in the interest of minimizing evidence supporting that a physician-patient relationship--and any correlating duty--was established.
Similarly, when seeking a curbside consult, a provider will want to consider whether the advice or input sought might be more appropriate for a formal consultation: unless a provider obtains the consulting colleague's permission to do so, it is advisable to avoid documenting the name of the consulted colleague in the medical record.
It would behoove all providers to keep in mind that the treating physician controls patient care; if, as a consulting physician, one orders testing, writes prescriptions, adjusts medication doses, or physically examines the patient, for example, those actions will become part of the patient's medical record and will likely be deemed as establishing a physician-patient relationship and, accordingly, engender related duties and liability risks.
Of course, if the advice given by the consulting physician is academic and solely for the education of the provider seeking the consult, it is typically unnecessary to document the encounter. If, however, the advice given is more patient-specific, the consulting physician should consider creating a note of the encounter that details the advice given. In the event a lawsuit later arises and involves the consulting physician, such contemporaneous documentation may be used to support the physician's defense. In such event, if documentation of a curbside consult becomes lengthy, it is probably best to suggest a formal consultation.