Legal Report: Curbside Consults in the Digital Age
Ease of communication can trip up participants in an informal discussion.
- Ellen Epstein Cohen, JD; Adler, Cohen, Harvey, Wakeman, Guekgazian; Boston, MA
When it comes to curbside consults, patient care still benefits from the informal interaction, and physicians still face some liability risk that they should manage. But as Boston defense attorney Ellen Epstein Cohen, of Adler, Cohen, Harvey, Wakeman, Guekguezian tells us in this month's legal report: the risk has changed. Managing Editor Tom Augello recently interviewed Epstein-Cohen about curbside consults…in the digital age.
Ellen thank you for joining us. Let's start by saying what we mean when we talk about curbside consults.
Okay, the general understanding of a curbside consult is that it is an informal interaction between physicians or other healthcare providers in which one physician asks for advice or input on how to handle a particular patient issue where they are not in the presence of the patient, where the person who the doctor is speaking to doesn't necessarily know or has never met the patient. It's just an informal exchange between colleagues trying to help make treatment decisions.
So what are some of the special considerations when this interaction takes place electronically.
I think that's perhaps the most important question on this issue right now in the electronic age where doctors communicate with each other by e-mail so much, and there are really good reasons for doing it. At the same time, if you receive an e-mail that asks you a specific medical question, if you want to protect yourself, the best way to do it is to make clear that your answer is a general answer that is not intended to apply to any particular patient because you have a limited amount of information that is presented to you and you're providing a general answer in response without meeting a patient, seeing a patient, examining a patient, having the necessary medical history, and additional details and information about that patient. So if you choose to answer a general question with a general answer and you qualify it that way, you will be much better off than if you just give an answer to a question and if the person who is asking it then makes the decision to write into his or her chart, 'consulted with Dr. Smith.' Once your name gets into a particular patient's chart as a consultant or someone that advised the treating clinician about the care and the decisions involved in the care, then you've gotten yourself an invitation into a later lawsuit.
What if someone does give advice during a curbside consult and is not terribly explicit with the physician that they are giving it to, and then that particular physician writes it down in the medical record, and lo and behold two years later, they are both found in the midst of a lawsuit. Is there anything that the requesting physician can do after that suit has already be filed so they don't throw their colleagues under the bus?
Once they make the ill-advised decision to put their colleague's name in the chart, there isn't a whole they can do to un-ring that bell, if you will. The important thing to understand is that for a plaintiff—a patient in a civil suit is the plaintiff—for a plaintiff to succeed in bringing any medical negligence claim, they first have to prove the first element of negligence, which is a doctor/patient relationship. So the defense of the doctor who was consulted informally would be, 'I never met this patient. I never saw this patient. I never examined this patient. I never made 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.'
In terms of specific communication about this whole issue, you mentioned in a general way you want to tell the doctor 'this is general and not specific to a patient; please don't put my name in the chart.' How would you advise to have that conversation?
The first most important thing would be to say, 'if you would like me to see your patient and evaluate your patient and give advice, send me a referral. In other words, make this go through the formal route of getting me involved in the patient's care. And also I think there are very practical reasons for doing that. It can't hurt in the verbal face-to-face interchange or telephone interchange to say, you know, 'I'm not giving advice on this particular patient and please don't include me in the patient's chart. I don't know this patient.' In an e-mail certainly you would have it clear. You could use your standard language, your disclaimer language that says, you know, 'this is just a general answer to your general question and please don't construe this as medical advice for any particular patient.'
What about someone responding to a request or a question when the other physician is out of state, maybe you were good friends and one person moved to Michigan now and says oh I know who I can contact. I am going to contact Joe in Massachusetts. Is there anything different that they should be taking into consideration?
Well absolutely, and the question is if you give medical advice with regard to a particular patient over the Internet to a patient who is not in your state, the question becomes are you practicing medicine without a license in that state. So if you make clear that you're not giving patient advice or treatment; you're just trying to answer a general medical question, that would tend to make it clearer that you're not practicing medicine in that forum.
Anecdotally, any trends you have identified, more use of curbside consults or more aggressive action by plaintiffs to bring that into a case against a doctor?
I actually haven't seen it increasing. I would say I have seen it decreasing and that's because of education and awareness. So the lawsuits that I've seen are there when the doctor's name gets into the record. I know that sounds overly simplistic, but if we can educate providers it's good to get consultation from your colleagues, but it's not only unfair but really not good medicine to include a doctor's name in a chart where you've never made a formal referral, then we will have gotten really far in trying to eradicate this as a basis for liability for the informal curbside consultant.
Forum: Reducing Risk During Handoffs
Volume 25, Number 1