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.


Updated: Jul 30, 2019

As maternal injury rates have been climbing in recent years, a recent analysis by the federal Centers for Disease Control and Prevention ("CDC") reproductive health division sheds insightful new detail about when women are dying during their pregnancy and postpartum periods, and reveals how their causes of death vary.  With the ever-rising injury rates, undoubtedly rising numbers of malpractice claims related to maternal injury will follow. For reference, in 1990, approximately 17 maternal deaths occurred for every 100,000 pregnant women in the United States; in 2015, more than 26 deaths were recorded by 100,000 pregnant women, meaning that over a 25-year time period, American women have become 50% more likely to die in childbirth.1


The CDC Vital Signs Study

This new study by the CDC examined data for 2013-2017 from 13 state maternal mortality review committees ("MMRCs"), and found that the data reveals several areas for improving the care and treatment rendered to mothers. The findings are the result of a CDC analysis of 2011-2015 national data on pregnancy mortality and of 2013-2017 detailed data from 13 state maternal mortality review committees. CDC defines pregnancy-related death as the death of a woman during pregnancy or within one year of the end of pregnancy from a pregnancy complication; a chain of events initiated by pregnancy; or the aggravation of an unrelated condition by the physiologic effects of pregnancy. MMRCs, which are multidisciplinary groups of experts that review maternal deaths to better understand how to prevent future deaths, linked most pregnancy-related deaths with several contributing factors, including access to appropriate and high-quality care, missed or delayed diagnoses, and lack of knowledge among patients and providers around warning signs. Notably, of the 700 pregnancy-related deaths that occur each year, the CDC found that during 2011-2015 about one-third happened during pregnancy, about one-third happened during childbirth or the week after delivery, and about one-third happened in the following year. Overall, heart disease and stroke caused 34% of pregnancy-related deaths; other leading causes included infections and severe bleeding.


Overall, the CDC's new report "underscores the need for access to quality services, risk awareness, and early diagnosis, but it also highlights opportunities for preventing future pregnancy-related deaths," said Wanda Barfield, director of the CDC's reproductive health division.


What can medical providers and health facilities do?

The CDC recommended health care providers increase their advisory role to patients in terms of helping with management of chronic health conditions and education about warning signs of dangerous complications. Specifically, providers can help patients manage chronic conditions and engage in meaningful, ongoing dialogue about the warning signs of complications. There is an opportunity for hospitals and health systems to play a role in coordinating and facilitating communication and collaboration not only among healthcare providers but also among providers and their patients. Further, providers, hospitals and health systems would be wise to adopt measures related to handling obstetric emergencies, which could include conducting simulations for emergency pregnancy-related events.


Steps to reduce potential litigation?

Although they typically make up less than one-fifth of obstetric legal claims, maternal injury accounts for almost 20% percent of all obstetric claims; the remainder were neonatal injuries. Providers, hospitals and health systems may want to consider the following in connection with risk management initiatives, and legal counsel to providers and hospitals would be shrewd to counsel their clients regarding:

  • Adopting and incorporating best practices from the American Congress of Obstetricians and Gynecologists (ACOG) patient safety bundles;

  • Institute proper triage and screening tools so early warning signs are not missed.

  • Creating an embedded culture of patient safety;

  • Practicing simulation to be ready for unexpected, rare events;

  • Implementing tools to facilitate dialogue among providers and their patients;

  • Encouraging providers to be aware of and involved in patients; management of chronic health conditions;

  • Consider lessons from the California Maternal Quality Care Collaborative, a program first adopted in California that was successful in reducing maternal mortality by 5% during 2006 and 2013.

Further Reading:

CDC's Vital Signs Report: www.cdc.gov/vitalsigns/maternal-deaths

Press Release: https://www.cdc.gov/media/releases/2019/p0507-pregnancy-related-deaths.html

The Doctors Company Maternal Injury & Death Closed Claims Study:

https://www.thedoctors.com/articles/maternal-injury-and-death-closed-claims-study/:


In this third--and final--installment of the Telehealth series, drawing on the Telehealth landscape discussed in the prior posts, and considering the unique challenges that arise as a result of increasing utilization of telehealth, below are some practical suggestions for facilities, insurers and practitioners, as well as issues for attorneys to ponder.



Given the overall continuous upward trend in numbers of initiated medical malpractice claims, it is likely that the number of telehealth-related malpractice claims will also start to rise. It is not unreasonable to anticipate that any telemedicine specialty that runs a risk of failure to diagnose a serious disease coupled with the probable lack of a longstanding provider-patient relationship could lead to increased liability losses. Specifically, cardiovascular disease, chronic disease management and oncology tend to include high severity cases that have higher incidences of negative patient outcomes, which could lead to increased liability.


The following represents a number of suggestions for facilities, insurers, and practitioners, as well as issues for attorneys to ponder, surrounding telemedicine:

  • Increase education regarding the resources available to support and encourage telemedicine development, including the existence of policies and protocols for telehealth, which should be easily accessible to health care providers;

  • Require doctors to have a pre-existing relationship with a patient in order to engage in online prescribing;

  • Require a face-to-face[9] physical exam prior to online prescribing [Note that Idaho is one of two states with still existing restrictions on phone-call-only telemedicine. Many states also have telemedicine requirements related to patient medical history, written documentation, follow-up care, and emergency provisions. It is not advisable to prescribe medications based only on a patient’s answers to an online questionnaire or survey.];

  • Take notes and keep records in such a way that practitioners can easily demonstrate that they established an appropriate relationship with the patient, that they were able to adequately assess the patient, and that the patient provided them with an accurate health history.

  • Ensure the informed consent procedure includes: the names, credentials, and locations of every involved healthcare provider; the names, credentials, and locations of any other staff that may help facilitate the telehealth service; and descriptions of every telehealth service that will be performed and the technology that will be used;

  • Implementation of residency training on telemedicine best practices, as well as graduate and postgraduate medical education for doctors and nurses: medical and nursing schools would be wise to develop comprehensive curricula including lecture series, clinical clerkships and rotations so that upcoming health care providers are well educated on how to incorporate telemedicine into their clinical practices;

  • Physicians must decide ahead of time which conditions they are comfortable treating remotely. Many malpractice carriers will cover treatment providers for potential liability so long as the provider is practicing within the scope of their license. Additionally, providers would also be prudent to have a plan as to when they would require in-person visits, and have a process set for when and how to escalate treatment to a face-to-face visit.

Given provider shortages throughout the U.S., in both rural and urban areas, telemedicine has a unique capacity to increase and improve service to millions of new patients. With a little foresight and planning, the severity and complexity of legal issues of telehealth cases may be reduced.


Footnote

[9] Face-to-face exam does not implicate an in-person exam. Texas was the last state to require that the patient-physician relationship be established with an in-person examination before a telemedicine visit.


Learn More!

Center for Telehealth & e-Health Law (CTeL): www.ctel.org

The American Telemedicine Association: www.americantelemed.org;

The Centers for Medicare and Medicaid Services: www.cms.gov and www.medicaid.gov;

The Telehealth Resource Centers: http://www.telehealthresourcecenter.org/legal-regulatory.


Previous posts

Part 1 | Telehealth: What is it, and what new challenges does it bring?

Part 2 | Telehealth: Potential pitfalls & the current legal landscape

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