Legal Report: Careful Curbside Consults

A long tradition of seeking and sharing informal advice faces new wrinkles with e-mail and old liability risks in general.

Commentators

• Ellen Epstein Cohen, Esq.; Adler, Cohen, Harvey, Wakeman and Guekguezian; Boston, MA

Transcript

Physicians have a long tradition of seeking and sharing informal advice with colleagues. In this month’s Legal Report, malpractice defense attorney Ellen Epstein Cohen of Adler, Cohen, Harvey, Wakeman, and Guekguezian of Boston explains how—when it comes to “Curbside Consults”—there are new wrinkles with e-mail, and old risks in general.

You may be walking down the hospital corridor to get to clinic. Or you could bump into a colleague at the gym. Or you could be sitting in your office when the phone rings or an e-mail arrives on the computer screen.

As a physician you are frequently confronted with informal requests for your thoughts and opinions about the patients of others – commonly referred to as “the Curbside Consult.”  You probably don’t give it a second thought. 

Of course you share your thoughts and opinions about how your friend or colleague should proceed with his or her patient, because the best medical care results from collaborative thinking. Doctors are trained to engage in dialogue with each other all the time—rounding on patients as a group, preceptors working with the physicians they are training, departmental meetings—and the patients benefit.
           
Then, out of the blue, you receive a subpoena for a deposition, or even worse: a summons and complaint naming you as a defendant in a medical malpractice case.  You do not recognize the patient’s name; you cannot recall any involvement with the plaintiff patient; you scratch your head, and call the other poor unfortunate physician whose name appears right before yours as a defendant in the case. 

It is only then you learn that three years ago that physician asked informally for your opinion about one aspect of his patient’s care. He had recorded your advice and your name into the patient’s chart as having consulted with you. Or at his deposition he was asked to name all physicians with whom he discussed this patient’s care, and your name came up. 

What you thought was merely a courtesy “curbside consultation” has now involved you in a lawsuit. Not where you want to be.

What do you do?  Do you refuse to share your professional thoughts and advice ever again?  Of course not.

But there are certain things the courts look for in order to determine whether a physician has legal responsibility for involvement in a patient’s care which should be considered.  The key question is whether a physician/patient relationship was ever established.  In making this determination, the courts will look at these questions:

Did you ever meet the patient?

Did you speak to the patient?

Have you reviewed any part of the patient’s chart?

Did you examine the patient?

Have you made any notes in the patient’s chart?

Did the patient know of your advice or involvement, and

Did the patient requested your advice or consultation?

Something that complicates this analysis a bit, is E-mail communication, as it may include the patient’s name, or attach portions of a patient’s records or images, and imply a greater degree of connection to the patient than the in-person or telephone discussions of the past.  

If you had no direct contact with the patient, the patient is not aware of the discussion between her physician and you, and you merely offered your thoughts in response to a general discussion with a colleague (probably without even knowing the patient’s name), more likely than not you have not created a physician/patient relationship, without which you cannot be held to any legal obligation to that patient.

How can you continue to engage in these important discussions with colleagues, yet protect yourself from an unanticipated degree of involvement?  There are some simple ways to approach this:

Never give specific treatment advice on a patient you have not met, seen or examined.

Make clear that you are responding to a hypothetical situation, with limited information, but you will be happy to see the patient based on a formal referral.

If the discussion is unusually extensive, consider making a note for yourself regarding the advice that you gave to your colleague.

If you bill for your advice, you have created a doctor/patient relationship.

For Email communications, censor what you type before hitting the “send” button.  Evaluate whether your reply implies a greater degree of involvement with this patient than you intended.  Consider preparing a standard disclaimer paragraph to include in email correspondence that makes clear you are not giving advice regarding any particular patient, but responding informally to a general inquiry and will be happy to see the patient formally in consultation.

On the other side of the curbside encounter, if you are the one seeking advice, a little thoughtfulness may prevent a lot of legal heartache later on for the provider who is just helping out. Don’t ask for specific advice on a specific question for a specific patient, and don’t write down any general advice you receive or your colleague’s name—unless the consult is a formal and complete one, rather than a collegial conversation. It’s important for everyone involved to be clear about the difference.