Curbside Consulting in Medicine: Legal Boundaries

This article originally appeared here.
Does a relationship exist if there is medical decision-making?
Does a relationship exist if there is medical decision-making?

This article began as an argument among colleagues. As hospitalists, our group is occasionally expected to cover a mid-level practitioner group — usually by responding to phone calls from their office, “curbside” questions from the Labor and Delivery floor and by providing formal consultations. One of the members of our group questioned the medical-legal risks of providing the curbside coverage.

One of our members was consulted by phone to advise on a patient in a freestanding ED without the opportunity of being able to examine the patient. 

I am sure that this often happens to most doctors and, in general, that we are happy to provide answers to questions and to help our colleagues. But are we setting ourselves up for medical-legal risk? I was tasked to find out.

I started with my employer, who confidently stated that since we have not met the patients and they are physically in a separate building from where we work, there is no medical-legal risk or responsibility.

Not so fast

Despite what I was told, there is no “black-and-white” or “one-size-fits-all” answer to this question, and I could find very little recent literature that offered helpful clarification. But here is what I did find. 

The answer to the question regarding legal responsibility seems to revolve around the issue of whether or not a physician-patient relationship exists. However, deciding whether such a relationship exists is not always simple.

Does the relationship exist if there is an agreement to have a relationship? “A physician-patient relationship is broadly defined as an affiliation in which the patient seeks care, and the physician agrees to provide care.”1 However, establishing that this agreement exists may be less clear for consultants, as they may not “agree to assume care for a patient.” Some courts have ruled that the doctor must show “intent of care” or an “affirmative action” to create a physician-patient relationship. The physician has to clearly indicate, “I will take care of you.”

Does a relationship exist if there is medical decision-making? Some courts have ruled that if no medical decision or treatment decision is offered, a physician-patient relationship is not created, and no responsibility for the physician's fate is transferred.1

Does a relationship exist if there is physical contact? According to the COPIC Insurance Company, it is possible to establish a physician-patient relationship even if you have never physically seen the patient.2 Some legal cases have upheld that a physician-patient relationship exists even when the patient has not been physically examined by the physician — such as is the case with a pathologist or a curbside consult in the ED who reviews the patient's EKG and history but does not examine the patient.1 Finally, it doesn't matter if it's face-to-face, via telephone, or e-mail. Any verbal communication will do. 

In general, most courts have asserted that curbside consults do not create a physician-patient relationship.2 Most judges recognize that this type of communication improves patient care and they do not want to discourage the practice by making physicians fear liability.3-5

There are examples of what is not a curbside consultation and does count as a relationship. For instance, a relationship is established if you are on call and discuss a patient's symptoms, possible diagnosis or treatment … or if you are covering for a colleague and you are asked questions about a patient … or if you supervise residents or NPs and you get a call about one of their patients … or if a colleague relies on your consult for a diagnosis.5

“If test results, cultures, pathology specimens, etc are analyzed by a specialist, and advice specific to diagnosis and treatment is offered, then a physician-patient relationship is created, even if the specialist never sees the patient.” 

But, a telephone contact or consultation in which general advice is given does not place liability on the consulting physician, regardless of whether the consultant is officially “on call” or not.1

To protect your back, COPIC advises that careful language should be used in the chart to indicate that a relationship has or has not been established. If you request a consult over the phone, you should say something to the effect that “I discussed the case with Dr X who provided an opinion without formally consulting with the patient and (s)he did not personally interview or examine the patient.” Ask your mid-level provider to write this in the chart.  Further, you can document on your end “I did not formally interview, evaluate, or examine this patient.”2 It is a little extra paperwork, but effective communication is needed to minimize diagnostic errors and liability.

The Doctors Company suggests that the risk of liability is low if “questions are for education of requesting physician, no request to make or confirm a diagnosis, no record review is required, no questions about ordering specific tests or studies, the questions are straightforward and require only simple answers and nonspecific advice.”  To protect yourself, communicate! Clarify the nature of the consult, keep it brief, document the discussion, and make sure the attending physician is aware that the advice is not a treatment decision.6

Some physicians think that the best self-protection is to refuse to provide curbside consultation at all. Others feel that curbside consultation is vital for good working relationships and good medical care. In my personal experience, I have had both satisfying and unsatisfying curbside consultations. The lawyers are not the only ones to blame. In our rush to get things done with people we may have never met, we often forget that we are on the same team and appear to work against each other.

For example, I once declined to accept a direct transport from a freestanding ED, yet the patient was sent to my ED with my name as the accepting physician on the paperwork. I declined to document the conversation at the time, thinking I was being petty. But if there had been legal action, I would have been liable. This interaction has left me wary of curbside consultations and less willing to provide advice to colleagues without seeing the patient personally.

So, back to the original question. It seems that I can indeed be held liable for phone consults from our mid-level providers even if I have never seen the patient. And yes, if I am on call for that freestanding ED, I can be held responsible for treatment and management decisions. And yes, I need to depend on the referring clinician to document our exchanges accurately.

The bottom line is that it is up to me to clarify the nature of the consult, document my involvement, and encourage the requestor to do the same. It takes a little more time, thought and foresight. But doing so reduces the chance of miscommunication and may prevent future medical liability.

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References

  1. Moore JJ, Matlock AG. Shared liability? Consultants, Pharmacists, and the Emergency Physician.  Legal Cases and CaveatsJ Emerg Med.  2014;46(5): 612-616.
  2. “How to Appropriately Ask for—and Respond to—‘Curbside' Consulations.”  Copiscope. 2011.
  3. “Reynolds v Decatur Memorial Hospital” 277 Ill App 3d 80 (Ill App Ct 4th Dist). 1996.
  4. “Irvin v Smith”. 272 Kan 112.2001. 
  5. Mossman D.  “Curbside Consults: Know Your Liability.” Current Psychiatry.  2012;11(6): 42-45.
  6. ”Curbside Consultations.” The Doctors Company. Available at:  http://www.thedoctors.com/ KnowledgeCenter/PatientSafety/articles/Curbside-Consultations.  Accessed March 15, 2017.

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