Informal consults and the seeking of second opinions—Sometimes referred to as “curbside consults”— have long been commonplace in medicine and speak to the collegial, team-based nature of the profession. Informal consults occur between colleagues in the same specialty (a second opinion) or across specialties. These consults may be patient-centric or general in nature, with the former really more akin to a traditional consultation, and the latter to individual fact gathering and research. Understanding what constitutes a curbside consult—as well as whether or not to memorialize the information exchanged during such a consult—can help protect all parties should a case later result in a malpractice claim. This month’s tip reviews the best practices for engaging in curbside consults.
What Constitutes a Curbside Consult?
Physicians exchange information on myriad medical topics every day. For a conversation to be considered a curbside consult, it must involve a discussion of a specific patient’s treatment, care, or condition without the consulted physician examining the patient or reviewing the patient’s medical record. A common curbside consult scenario is one in which a treating physician seeks input from a trusted colleague about a clinical situation in an effort to improve the patient’s outcome. Generally, these situations do not involve reviewing records, test results or making a diagnosis or treatment plan. In these low risk scenarios, there is no need to “formalize” the curbside consult. However, as noted below, in some circumstances a more formal approach is preferable.
Establishing Liability for Curbside Consults
Legal liability for a patient’s care is dependent on the existence of a physician–patient relationship. Generally, courts have ruled that a curbside consult does not create a physician–patient relationship between the consulted physician and the patient. Without a physician–patient relationship, the consulted physician has no duty of care to the patient. See, Ingber v. Kandler, wherein no physician patient relationship was deemed to exist; two colleagues were just discussing a patient without any expectation of reliance by one on the other. When discussing the rationale for this limitation courts have noted a public policy sentiment that "[i]imposition of liability under these circumstances would not be prophylactic but instead counter-productive by stifling efforts at improving medical knowledge." See, Sawh v. Schoen.
Importantly, the treating physician—who has the right to accept or reject the opinions and recommendations of any consultant—always maintains the greatest degree of legal responsibility for a patient’s care. Although rendering an opinion about care as part of a “curbside consult” can certainly result in the consulted physician being sued, the consulted physician does not assume primary responsibility for the patient’s care. See, Rogers v. Maloney, wherein the court did not summarily dismiss a case against an informal consultant and found a question of fact existed as to whether a physician patient relationship had been created because the expectation was that the advice provided would be relied upon and followed for treating the patient. A review of cases discussing when liability attaches to consults can be found here.
Best Practices for Electing Between Curbside and More Formal Consultations
Before agreeing to participate in a curbside consult:
- Ask whether the requesting physician will rely on the information you provide for the treatment of a particular patient.
- Ascertain whether the requesting physician intends to place your name in the patient’s chart,
- Ascertain whether the information being solicited will be central to the care the patient receives.
If the answer to any of the above questions is yes, then it is advisable for you, as the consulted physician, to include a note in the patient’s chart. The note should describe your role, the data you reviewed, your opinion, and the basis of your opinion. The note also should clearly state the limitations of your involvement in the case.
The following are other factors that support adding a note to the chart and possibly converting your involvement to a formal consult:
- The case is extremely complex.
- You believe that the only way to provide sound advice is by examining the patient personally.
- You do not want to risk having someone misquote or mischaracterize the advice you provided.
- You are asked to review test results.
- You are asked to make or confirm a diagnosis.
- You are asked to recommend specific tests or studies.
- The treating physician asks about the same case more than once.
- The patient requested the consultation.
- Responding to the consult requires so much effort that you want to bill for your time.
An article in the Journal of the American Medical Association offers a number of guidelines for engaging in curbside consults, including the following:
- Keep the curbside consultation brief and simple. If the case requires consideration of two or more confounding variables or a detailed discussion of the patient’s history and physical examination, formal consultation should be considered.
- The attending physician should offer the option of a formal consultation as a courtesy if the complexity of a specific patient problem or the consultant’s desire to see the patient is not clear.
- Consider a formal consultation if contacted by a treating physician a second time concerning a particular patient.
Litigation Benefits of Curbside Consultations
A treating physician involved in a medical malpractice suit will benefit at trial by demonstrating that he or she sought a second opinion as part of the patient’s treatment. If the treating physician did not follow the opinion provided by the consultant, the treating physician still benefits by demonstrating that he or she considered alternatives, provided, of course, that the treating physician documented the reasoning for choosing not to follow the consultant’s opinion. If the treating physician followed the advice of the consulting physician, the treating physician will benefit in front of the jury by having another physician who supported the course or treatment.
For more on the issue of curbside consults, see the article “The Dangers of Curbside Consults and Why We Need Them” by Robert M. Wachter, MD.
Patients have a right to know who is involved in their care. By identifying the physician consultants from whom opinions are sought, the medical community comes closer to achieving greater transparency with patients. As alluded to above, this process will also help the physician should the patient, the hospital, or even regulators question a particular action.
Physicians ask for a consult—formal or otherwise—because they are striving to do right by their patient and need the input of other experienced practitioners to achieve that goal. Therefore, before refusing to answer a colleague’s questions, or provide a second opinion (i.e. an informal consult), keep in mind that you may well need to seek such a consult in the future, and that such consults are usually low-risk endeavors, particularly if you follow the best practices outlined in this tip. Above all, remember that taking time to memorialize your opinion in the patient’s chart protects you from being misquoted, and benefits the treating physician by demonstrating that he or she sought second opinions in the course of treatment.