Curbside Consults: An Attorney’s Take

Interview by Debbie LaValley, BSN, RN, CRICO

Ellen Epstein Cohen, Esq. is a partner in the Boston-based law firm, Adler, Cohen, Harvey, Wakeman & Guekguezian. Attorney Cohen frequently serves as defense counsel in malpractice suits naming CRICO-insured defendants.

What is a curbside consult?

Attorney Cohen: It is an informal interaction in which one physician asks another for advice or input on how to handle a particular patient issue, during which the person to whom the physician is speaking 1) is not in the presence of the patient, and 2) doesn’t necessarily know or has never met the patient. It’s an informal exchange between colleagues who are trying to make treatment decisions.

What if Dr. X sends Dr. C an e-mail about a patient’s diagnosis or care?

If Dr. C receives an e-mail that asks her a specific medical question, she should make it clear that her answer is a general answer—not intended to apply to any particular patient. She has a limited amount of information being presented to her and she’s providing a general answer without meeting, seeing, or examining the patient. She doesn’t have the necessary medical history or additional information about that patient to render a medical opinion specific to that patient.

When Dr. C chooses to answer a general question with a general answer, and she qualifies it that way, she will be much better off than if she just gave an answer to a question, especially if Dr. X then makes the decision to write in the patient’s medical record that he or she consulted with Dr. C. Once her name gets into a particular patient’s chart as someone who provided advice about the treatment decisions involved in the care, then Dr. C is on the invitation list for any ensuing litigation.

If Dr. X documents the contents of a curbside consult (including Dr. C’s name) in a patient’s record, and a medical malpractice suit is later filed, is there anything that Dr. X can do to protect Dr. C?

No. Once Dr. X makes the ill-advised decision to put Dr. C’s name in the chart, he can’t un-ring that bell. But the plaintiff in a medical negligence claim does have to prove that there was a physician/patient relationship established. So the de­fense for Dr. C would be: “I never met this patient, saw this patient, or examined this patient. Nor did I ever make a note in this patient’s chart. I never had any information about who this patient even was. I didn’t know this patient’s name. I just remember Dr. X called me and asked me a question about this issue.” The legal argument of Dr. C’s defense would be that there was no physician/patient relationship and, therefore, no duty ran from the consultant (Dr. C) to the patient. But that doesn’t mean Dr. C won’t have to stay in the lawsuit and fight to prove her position.

What if Dr. X asks Dr. C to take a look at one of his patient’s test results or images?

This is the next layer of establishing a physician/patient relationship. Now Dr. C knows who the patient is and something specific about him or her. That’s the danger zone. Dr. C would be well-advised to include a standard, boilerplate statement (to use either in conversation or in her e-mail responses) that clarifies the limit of her consult. For example she could say: “I’ve looked at this [result], but it’s not enough for me to render specific medical advice. At your request or the patient’s request, I would be happy to become involved in evaluating [him/her] and get involved in [his/her] care,” or “this image suggests [the following things] and should be followed up by the patient’s treating team.”

If Dr. C doesn’t qualify her answer and just answers the question about Dr. X’s patient based on that patient’s test results, she has gone a lot further in creating what can be seen as a physician/patient relationship.

Would it be prudent for Dr. C, while giving a curbside consult to Dr. X, to document what she actually told him? Would that reduce confusion or misinterpretation if it should come to court?

That’s probably not feasible for busy practitioners who want to be communicating freely with their colleagues. The concept of asking for curbside consults is that patients receive the best quality of care by skilled physicians who have considered and thought about their issues the most. If we begin telling physicians that they need to document every curbside consult, they may simply avoid doing them. Further, it is very difficult to think of a way that these informal consults could be maintained, as Dr. C has no chart for this patient because she has never seen her for any formal encounter.

Does the fear of being sued render some physicians more reluctant now to give curbside consults?

I do think that plays into people’s minds…especially once you hear about someone who has been “burned.” When you hear about how Dr. C’s name got into the chart of a patient whom she never met or saw, and she ended up as a defendant in a lawsuit, it’s memorable. But curbside consults are such an im­portant aspect of communication between physicians, and so deeply ingrained in their practice, so I hope we’re not going to lose that as an essential element of high quality patient care.