Richard Cahill, JD, Vice President and Associate General Counsel, The Doctors Company

Informal, or “curbside,” consultations among healthcare practitioners represent an important part of clinical practice and help to promote a collegial relationship in both the clinic and hospital settings. These types of informal consultations can increase knowledge among practitioners and may also improve the care and treatment of patients who present with complex comorbidities, often resulting in more favorable outcomes. Informal consultations do, however, include inherent risks for the consulting practitioner. This article answers questions that our patient safety risk managers routinely address about the potential liability of unofficial professional consultations.

Do practitioners who provide curbside consultations risk being sued?

 

Risks are involved if the expectations between the practitioners are not clearly communicated at the outset of the dialogue. In a classic scenario, the consulting practitioner is sued by a patient the practitioner 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 consulting practitioner who offered the informal advice made no written record of the encounter that could later support the basis for the recommendations. As a result, the consulting practitioner has little evidence to defend the care other than possibly relying on an established routine or habit and practice when attempting to explain the recommendations discussed. The risk of being named in litigation increases significantly if the requesting practitioner identifies the consulting practitioner by name in the patient’s record and summarizes the general nature of the conversation.

 

What are the legal issues raised by curbside consultations?

 

A consulting practitioner who provides informal advice could be named in a lawsuit if a patient suffers harm because the requesting practitioner relied on the consultant’s information to make a treatment decision. Both practitioners could be liable if the information failed to conform to community standards and was a proximate cause of the patient’s injury. The probability that both would be named as defendants would depend on the content of the documentation made regarding the consultation, the nature and extent of the patient’s injury, and the information revealed during litigation.

The preliminary legal questions to be evaluated in cases involving curbside consultations are: (1) Did a practitioner-patient relationship exist between the consulting practitioner and the patient, and (2) did the consulting practitioner, therefore, owe a duty of due care to the patient consistent with what similarly trained practitioners would have done under the same or similar circumstances?

For each affirmative response to the questions below, the likelihood increases that a curbside consulting practitioner could be named as a defendant and face possible monetary exposure for civil damages should the matter proceed to trial or arbitration:

• Did the requesting practitioner provide detailed facts that included the patient’s history, comorbidities, and laboratory data?
• Did the consultant personally review any portion of the patient’s record?
• 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 requesting practitioner or the patient?
• Most importantly, did the consultant submit a bill for services rendered?

What kinds of informal consultation cases have been litigated?

 

Our closed claims analyses revealed multiple cases in which informal consultations took place between practitioners and the patient ultimately suffered serious cardiac, obstetric, neurologic, hemodynamic, or other untoward sequelae. Both practitioners were named in the subsequent malpractice action. In some cases, the consulting practitioner shared in liability for the final outcome based on the degree of involvement. (See the factors outlined in the question above.)

Curbside consults have also moved to electronic communications. Does a practitioner’s professional liability insurance cover consulting with other practitioners through electronic means?

 

It does not matter if the curbside consultation is electronic (via email, text, or telephone) or an in-person, face-to-face encounter. Due to the advent of metadata technology, the electronic footprint of the interaction exists virtually forever. The issues with informal consultations, regardless of the mode, remain the same. The fact that an email, text, or other electronic format allows practitioners who are miles—or states—apart to communicate can, however, also lead to other issues, such as privileging, credentialing, and licensure in the state where the patient resides. Professional liability insurance does not typically cover a practitioner for practice in a state where the practitioner is not licensed. 

What patient safety issues are raised by curbside consultations?

 

From a patient safety standpoint, a verbal or electronic exchange between practitioners may lack the patient’s complete clinical picture (which should include a detailed history, an explanation of presenting signs and symptoms, identification of prescription and nonprescription medications, comorbidities, findings on physical examination, and related issues).

By responding without having all the pertinent information, the consulting practitioner may provide advice that is not in the best interests of the patient. It may result in an incorrect diagnosis, the formulation of an incorrect treatment plan, or a delay in ordering and implementing appropriate therapies. If the patient is harmed as a result, the consulting practitioner could be named as a defendant in a claim.

In analyzing closed claims, we have learned that incomplete or poor communication among practitioners 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 practitioner’s questions go beyond the low-risk scenarios described below, a formal consult should be obtained instead.

• Questions are for the general education of the requesting practitioner and are not specific to the patient.
• No request is made to confirm or make a diagnosis.
• No record review is required.
• No questions are raised about ordering specific tests or studies.
• The questions are straightforward and require only simple answers and nonspecific advice.

What can practitioners do to protect themselves?

 

At the outset of the encounter, clear communication must take place between the practitioners that identifies the nature of the inquiry and the type of guidance being solicited. Curbside consultations are tempting to busy practitioners because they are convenient and speedy—the very reasons to avoid engaging in this practice. Also, consulting practitioners are not compensated for the time, expertise, and potential liability exposure involved. If you decide to assume this risk, consider the following strategies:

• Clarify the nature of the consult; advise the requesting practitioner that a curbside consultation should not be considered a formal consultation.
• Consider the facts not provided.
• Keep the consultation brief.
• Make sure the requesting practitioner is aware that the advice given is not a treatment decision.
• Refrain from using email or text messages as a method of informal consultation. (For more information, see our article “Smartphones, Texts, and HIPAA: Strategies to Protect Patient Privacy.”)

If the requesting practitioner continues to insist that you render a treatment decision or makes serial inquiries about the same patient, we advise that you firmly but respectfully request making a formal and documented consultation instead. This approach helps to promote optimum patient care and protects the practitioners from possibly frivolous malpractice claims in the event of an unexpected or adverse outcome.