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Minimizing The Legal Risk with ‘Curbside’ Consultation
By Ray Kreichelt, JD,
Mary Lou Hilbert, MBA, LHRM, and Deidre Shinn, MSN, MBA
©2008 American Society for Healthcare Risk Management of the American Hospital Association– ASHRM Journal, Volume 28, pages 27-29.
5-4-1 “Curbside consultations” – in which a physician obtains insights on a medical case from another physician who has not seen the patient or reviewed the record – can yield advantages to the requesting physician. However, shortcomings are inherent in this common type of exchange and pose legal risk to the curbside consultant. This article provides background and practical tips that might help avoid being caught up in a lawsuit by surprise, or if named as a party, avoid being held culpable when the only involvement was a brief conversation with a colleague.   Introduction   Can a physician be held liable for the care of a patient he or she has never seen? Generally, physicians know the distinction between casual advice and a formal consult. However, that line can be blurry not only to the physician but the court system, as well. The informal or “curbside” consultation is common in the medical management of patients and an important part of medical community relationships. This article will offer guidance to reduce the risk and exposure of both the consulting physician and the requestor.   Shortcomings   Although curbside consultations offer advantages to the requesting physician, shortcomings are inherent in this type of exchange and pose legal risk to the “curbside” consultant. (1) These dangers include:

• The information provided to the consultant could be inaccurate or incomplete.

• Inappropriate advice may be given and followed.

• The consultant’s name may be recorded in the record as the source of advice without the consultant’s knowledge.

• The treatment provided in accordance with the consultant’s advice might be harmful to the patient, when the advice is given without a thorough review of the patient’s history.

• Both the consultant and the attending physician are vulnerable to a suit based on inappropriate treatment of the patient. (2)

  This article is not intended to discourage participation in informal curbside consultation. Rather, it is intended to provide background and practical tips that might help avoid a surprise lawsuit or, if named as a party, avoid culpability when the only involvement was a brief unmemorable conversation with a colleague about a patient that that was never seen, never examined and never billed.   Physician-patient relationship   The existence of a physician patient relationship is the predicate for medical malpractice liability in many jurisdictions. (3) In the absence of this relationship, a physician generally owes no legal duty and cannot be held liable to a non-patient.  The physician-patient relationship prerequisite in medical malpractice litigation distinguishes this litigation from run-of-the-mill personal injury litigation. The common-law duty to refrain from negligently injuring others generally requires no prior relationship between the parties. By contrast, professionals do not owe a duty to exercise their particular talents, knowledge and skill on behalf of every person they encounter. Thus the duty to treat a patient with proper professional skill flows from a consensual relationship where the patient seeks the assistance of a physician and the physician accepts the person as a patient. (4)   Establishment of a physician-patient relationship is typically created when the physician and the patient voluntarily enter into a contract, either written or implied, wherein the physician agrees to render medical care and treatment to the patient for a fee. Typically, the scope and nature of the relationship is not explicitly agreed upon at the outset. Rather, the relationship evolves and is inferred from the communications and conduct of the physician and the patient. (5)   The relationship may, however, also arise from a gratuitous undertaking to render medical care and treatment to a patient without any form of agreement, promise or expectation on the part of the physician or the patient for a payment of a fee.(6) And, an implied relationship may be found where the physician gives advice through another physician. It has become common in today’s highly charged litigation atmosphere for plaintiffs to name numerous defendants in medical malpractice actions, no matter how tenuous the defendant’s role was in relation to the plaintiff’s care and treatment. Curbside consulting physicians are often drawn into the mix. The good news is that courts generally view informal curbside consultations as a service to a medical colleague, not as providing care to a patient (7) However, it is up to the court to determine as a matter of law, what characteristics must be present for a relationship to give rise to a duty, but it is essentially a question for the jury to determine whether a relationship has been established.   Identifying the curbside consult   Indications of an informal curbside consultation include the following, although no single feature establishes that there it is an informal consultation or that there is no legal relationship with the patient:

• The consulting physician was not provided the name of the patient.

• The consulting physician has not examined the patient.

• The consulting physician has no direct communication with the patient.

• The consulting physician does not review the patient’s medical records, including films or labs.

• The consulting physician has not made an entry in the patient’s medical records.

• The consulting physician has no obligation for formal consultation, e.g., on-call obligations.

• The consulting physician receives no payment for services.

• The consulting physician gives opinions and advice solely to the treating physician.

• The treating physician remains in control of the patient’s care and treatment. (8)

  Conclusion   Published risk prevention and control recommendations suggest that when informally consulted, the physician should:  

• Never give specific treatment advice on a patient never met, seen or examined. It must be clear that any responses are to hypothetical situations, with limited information.

 • Keep curbside consultations brief and simple. For more complex cases such as those requiring consideration of two or more confounding variables or detailed discussion of the patient’s history and physical examination findings, formal consultation should be considered.

• Recommend formal consultation when a curbside consultation regarding a specific patient has to be repeated.

• Ask that the physician’s name not be recorded in the patient’s medical record. (9)

  Putting it in writing   As a general rule, a written record summarizing the discussion should be discouraged. If a discussion with a colleague seems to warrant written memorializing, that may be a signal to recommend a formal consultation so that a note can be made in the patient’s record. Also, curbside consultations by e-mail are discouraged. Special concerns are posed by e-mail, not the least of which is that a record of the communication is created, and distribution cannot be restricted. E-mail may mention the patient’s name or attach portions of the patient’s chart, including studies, which imply greater connection to the patient than would be warranted if the communication occurred in the hallway or by phone. If communicating to an inquiry by e-mail, physicians should be advised to take time to review what they are saying before they hit the “send” button. They should not suggest a greater degree of involvement with the patient than what is intended. A standard disclaimer paragraph can help make it clear that the writer is not giving advice regarding any particular patient, but rather is responding informally to a general inquiry and would be happy to see the patient formally in consultation.(10)   ABOUT THE AUTHORS Ray Kreichelt, JD, is Litigation Claims Manager, Nemours Foundation, Jacksonville, FL; Mary Lou Hilbert, MBA, LHRM, is Director of Risk Management-Florida, Nemours Children’s Clinic, Orlando, FL; and Deidre Shinn, MSN, MBA, is Director of Risk Management-Alfred I. DuPont Hospital for Children and Nemours Children’s Clinic Delaware Service Area,   Wilmington, DE.   REFERENCES 1. Manian, F.A., Janssen, D.A. “Curbside consultation: A closer look at a common practice,” JAMA, Vol. 275, No 2, pp. 145-147. January 10, 1996. 2. Washington University, School of Medicine, Risk Management Program: “Risk Prevention and Control: Informal ‘Curbside’ Consultations.” Updated September 24, 1999. 3. Kananen v. Alfred I. duPont Institute of the Nemours Foundation, 796 A.2d 1 (Del. Super. 2000); Fortino v. Stouffer, 17 Pa. D. & C. 4th 526, 1993 WL 668986. January 16, 1993; Ryans v. Lowell, 197 N.J. Super. 266, 484 A.2d 1253 (N.J.Super.A.D.1984); Sterling v. Johns Hopkins Hospital, 145 Md.App.161, 802 A.2d 440 (Md. App. 2002); Torres v. Sarasota County Public Hospital Board, – So.2d –, 2007 WL 1094346 (Fla. App. 2 Dist.), 32 Fla. L. Weekly D973. 2007. 4. Baker, K., Thomas, K. “Doctor’s legal duty – erosion of the curbside consult,” Mondag Business Briefing. November 5, 2003. 5. Olick, R.S., Bergus, G.R. “Malpractice liability for informal consultations.” Family Medicine, pp. 476- 481. July-August 2003. 6. 6 Fla. Prac., Personal Injury & Wrongful Death Actions, § 12.12. 7. Olick, R.S. supra. 8. Olick, R.S. supra. 9. Manian, F.A., Jansen, D.A. supra; Physician’s Risk Management Update, Volume XIII, Number 2, “Minimize risks during curbside consults.” March/April 2002. 10. Harvard CRICO RMF. May 2007.