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ED Informal Phone Consult Risk, Benefits


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ED Informal Phone Consult Risk, Benefits

By Tom A. Augello, CRICO

Related to: Communication, Diagnosis, Cures Act: Opening Notes, Emergency Medicine

Guest Commentators

Ellen Epstein Cohen, JD; Adler, Cohen, Harvey, Wakeman, Guekgazian; Boston, MA

Luis Lobon, MD, MS, FACEP; Cambridge Hospital; Cambridge, MA


This legal report is the third in a series of excerpts from a point-counterpoint by a physician and a medical malpractice defense attorney. They spoke at a Harvard-sponsored patient safety conference in the 2009, about the benefits and risks of increasing telephone consults in Emergency Departments. Dr. Luis Lobon is Site Chief for the Cambridge Campus Emergency Department of the Cambridge Health Alliance, and is an emergency medicine specialist by training. He advocated for wider use of telephone consults in the ER. But Dr. Lobon was followed by Boston defense attorney Ellen Cohen who offered some words of caution.

First, Dr. Lobon:


We’re going to talk a little bit about multidisciplinary interactions and what best to identify those interactions that consults, particularly those consults that originate in the Emergency Department… So what constitutes an ED or an Emergency Department phone consultation? Several examples of those could be: “you saw this patient in clinic the other day. I just have them in the ED now, could you please advise me on what you did and how to proceed from here?” Another one would be: “there’s a case here that we have worked up. We are not sure how to proceed, and I would like to maybe get, you know, your thoughts on it.” Another one that is not so I would say collegial or friendly would be “gee, you’re forcing me to perform a procedure because you don’t want to come into the emergency department to help me out with this fracture dislocation.” Those are some. There are many others as you can imagine.

Dr. Lobon explained that his hospital system participated in a performance improvement program that was sponsored by his malpractice insurer. Several hospitals got together to choose a project, and Dr. Lobon’s ED chose ‘phone consultations.’ The practice has in the past lacked protocols. The informality may present risks to patients and liability for providers.


“From the perspective of the emergency physician—being one of them—I admit that I can obtain a lot of gain from a quick phone consultation in a very short period of time. That satisfies my needs and those of my patient. From the consultant, they are being nice to the emergency department. They are being team players. They are participating in everything else that the institution has asked them to participate. At the same time they are avoiding a trip to the emergency department at 3:00 in the morning on Saturday night. That’s something to be considered. So there are so many advantages and this is a very well established practice. Why are we questioning it? Well, the main reasons why we question phone consultations have to do with the safety of our patients. From the emergency department physicians, we have no documentation to support our recommendations that we are going to apply to our patients before they leave or as follow up. From the consultants in many instances, they don’t even know what we’re asking them to do. So, ‘I saw the patient in clinic yes, what would you like me to do? You know, I don’t understand. I’m in the middle of something, you caught me off guard. What do you want me to do?’ Only to find a day, two, three, four days later, or unfortunately in court sometimes, that, as a consultant, your name was collected on the medical record as being part of the workup or treatment of a patient when you have absolutely no recollection about it. So after all this negatives, how do I feel about ED phone consultations? I would support them and I’m going to tell you why. At our institution, we have decided to include the curbside phone consultation as part of our overall institutional consultation policy and procedure. This phone consultation guidelines would be a best practice in our organization and from the both the consultant and the emergency physicians we’ll need to include key elements, some of which would include from the emergency physician. We will need to clearly state the reason for the consult with clear goals and objectives. We would also set limits to what the emergency physicians will be able to do, provide care, procedures, etc. without the physical presence of the consultant in the emergency department. From the consultant side, they need to clearly understand that they are engaging in patient care, and they will be responsible for any recommendations that they will provide the emergency department with. They will also follow-up the procedures that will be established as far as documentation by the institution and will also have the opportunity to be credited for these emergency phone consultations. Thank you.

To provide a counter-argument—or at least raise some red flags from a liability perspective—malpractice defense attorney Ellen Cohen of Adler, Cohen, Harvey, Wakeman & Guekguezian followed Dr. Lobon’s presentation.


I’m going to be brief on this point because I think it’s pretty obvious. From a legal perspective, the plaintiff’s attorney has the burden of proving, in order to prove any medical malpractice claim, any negligence claim, the first thing they have to prove is a doctor/patient relationship. And in 99 percent of our cases, there’s no question about that. In this situation, that’s a big question because you have to remember in a telephone consultation many of the people you’re calling aren’t the primary care physician who know the patient but someone who doesn’t know the patient, someone who hasn’t seen the patient’s record, who hasn’t seen the patient’s imaging, who doesn’t know the patient, doesn’t know the patient’s history, doesn’t know the patient’s ability to communicate history, doesn’t know anything. And so they can give a general answer in a vacuum and say this is my advice to you, Dr. Emergency Room Doctor, if you have a patient with XYZ circumstances, you should investigate and consider ABC tests and diagnoses. Is that a doctor/patient relationship? And then the end result is that there is an entry in either the emergency room record or somewhere in the hospital chart or even in a primary care outpatient record that says, ‘I consulted with Dr. Cohen. And after consultation with Dr. Cohen and discussion of this, that and the other thing, I did this at her advice or with her agreement.’ And you can guarantee that I am then going to be a defendant in a lawsuit if and when there is a lawsuit. And so the question of whether this creates a doctor/patient relationship is a really important one. Certainly, I would think that most physicians would be disinclined to give advice about a patient that they never saw, never met and couldn’t examine over the phone for no pay. So making this a real consultation has the challenges of how much information is provided, what are the limitations of the ability to provide a consultation, and whether or not you’re gonna get paid for it. So I think that, while it’s an important concept that’s deeply rooted in the practice of medicine—I mean, we get curbside consults. we get that from long before cell phones and e-mails were available, we get that concept that’s deeply embedded in best practices from the notion that patients get best care by the input from the most good, experienced minds and clinicians. And so you want to encourage that for best practices, but you also want to from a legal perspective be careful about making clear to the person you are calling, whether I’m just calling to run a scenario by you or whether I’m really consulting you about a particular patient whose sitting in Exam Room 2 down the hall or in the emergency room. So thank you very much.

January 1, 2010
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