Physicians are often requested to provide informal consultations with fellow doctors or lay persons. These discussions of various sorts— sometimes called “curbside consults”—may sometimes be approached reluctantly by the solicited physician. That is prudent as such encounters can occasionally expose the doctor to a medical malpractice claim. Indeed, the courts, in limited situations, have allowed claims against a physician who provided just informal advice. So-called “Good Samaritan” laws do not usually provide protection in these situations. For this reason, when providing curbside consults, a doctor must temper her courtesy with caution.
There are several situations which might be considered a curbside consult or something akin to it:
1. A physician or nurse seeks advice of another physician in the hospital concerning the treatment of a patient not under the care of the physician who is being questioned and then records the discussion in the patient's chart;
2. There is a general conversation between physicians about interesting cases, either in an informal conference or a formal setting such as grand rounds and this is recorded;
3. A doctor at a tertiary center is called by someone at a community hospital for advice about possible transfer and treatment which is recorded in the chart;
4. A specialist is called for a consult by a hospital emergency room;
5. A doctor screens radiological or other studies or conducts physicals for an employer or other third party but is not serving a patient directly;
6. A lay friend or acquaintance seeks informal advice from a doctor;
7. A doctor comments about a particular patient's situation on an internet blog; or
8. A doctor makes comments about patient treatment in a lecture or textbook.
The law is unsettled whether such informal, indirect or limited discussions could expose a physician to malpractice liability. The longstanding touchstone of malpractice liability is that a physician owes a duty to her patient; if there is no physician-patient relationship, there can be no liability. Applied literally, this would shield doctors from liability in most curbside consult situations. But this doctrine has been eroding in decisions from various courts.
Courts are divided over whether a physician in an informal consult owes a duty of care to a particular patient. The underlying rationale for courts denying such a duty is the concern that a permitting liability would negatively affect quality of care by deterring doctors from engaging in informal consultations. 1 Judges reason that the practical benefits of allowing physicians to freely engage in informal consultations without fear of potential legal ramifications lawsuit outweighs the potential benefit of allowing such claims.
On the other hand, courts permitting liability hold either that the existence of the necessary doctorpatient is typically a fact question for the jury to resolve or that the underlying policies of tort law would not be furthered by such a rule.2 Specifically, some judges have found that the dual policies of compensating tort victims and dissuading negligent conduct could potentially be undermined if consulting physicians were always protected from malpractice claims.3 These courts have established various guidelines for determining whether a consulting physician owes a duty of care to the patient. The United States District Court for the District of Maryland, for example, explained the relevant inquiry as follows:
The analysis...loosely focuses on three areas: (1) the existence of a relationship between the consulting doctor and the facility providing care that would require the consulting doctor to provide advice; (2) the degree to which the consultation given affected the course of treatment; and (3) the relative ability and independence of the immediate care provider to implement his or her own decision.
Bessenyei v. Raiti, 266 F. Supp. 2d 408, 411-412 (D. Md. 2003), citing Sterling v. John Hopkins Hosp., 802 A.2d 440 (Md. Ct. Spec. App. 2002).
Ultimately, this is a jurisdiction-specific issue with differing results depending on the state in which the lawsuit against a consulting physician is filed. In general, the degree of attenuation of the physician's relationship with the patient is critical to determining whether a duty exists. For example, situations involving either a screening for an employer or advice provided pursuant to a formal consultation agreement are more likely to result in the finding of a physician patient relationship than a simple telephone call or a general comment in a lecture or grand rounds.4
There are some simple steps that can be taken to reduce a physician's risk from these encounters:
• If another physician or nurse seeks advice informally, emphasize that comments are “informal”, “based on general principals” and are “not a formal consultation”, framing responses in general or abstract terms, suggesting several potential treatment options and their risks and benefits, emphasizing that such a conversation does give rise to a formal consulting relationship nor is the physician advocating a particular course of action.
• Avoid evaluating tests results or providing a specific diagnosis.
• Attempt to keep all informal consultations regarding a specific patient to a minium.
• If a patient's treating physician pushes for more specific guidance suggest that a more comprehensive evaluation may be appropriate. This will ensure that any specific treatment recommendations are based on a full understanding of the particular patient's medical history and is not the result of either second-hand or incomplete information.
• Do not discuss matters outside one's field of expertise and never prescribe medications informally.
• Create a special, permanent office folder with notes about such informal consults. Naturally, a doctor would not be writing up a consult note for a hospital or office chart when it is not the doctor's patient who is discussed. But very often the doctor soliciting the advice will have made a note, and that will be the only written recording. However, the doctor consulted can protect himself by making his own note, kept in a special miscellaneous file that does not imply a doctor-patient relationship, but which does allow the consulted doctor to make a written record that emphasizes the informal, non-specific and non-conclusory nature of the advice.
• In the realm of the employer screening and other formal situations, it is more difficult to avoid a claim that there was a misdiagnosis or failure to diagnose. Here the physician should protect himself, at least from a monetary standpoint, by obtaining a contractual indemnity or agreement to provide insurance from the company employing the physician to screen. Further, it could be helpful to create a document for each employee to sign which explains the limited nature of the screening, the fact that there is no doctor- patient relationship and that the screening is not meant to diagnose conditions for the employee.
• Where advice is sought by a lay person, the physician responding must emphasize that it would be best for the inquirer to consult her own physician or set up a formal appointment with the doctor if appropriate, and that the responder is not the inquirer's doctor. In other words, make clear that the person should not be relying on the responder's advice and that the responder is not the inquirer's doctor— both of which are requirements for legal liability.
In the dermatology practice there is a growing practice of teledermatology where the doctor is involved in a remote consult for patients without direct or easy access to a dermatologist. The dermatologist either provides a diagnosis and treatment plan after electronically reviewing the patient's tests results without an in-person consult, or provides a diagnosis and treatment plan utilizing a real-time video conference system. In either scenario, a court is very likely to conclude that the dermatologist may be sued for malpractice because this consultation is formal and involves a specific patient.
On the other hand, a dermatologist may receive an e-mailed photograph from a general practice physician. For example, a picture of a lesion may accompany the message, “A patient came in today with this wart. Is freezing it still the preferred treatment?” Subsequently, it is discovered that the purported wart is, in reality, a malignant neoplasm which, as a result of being frozen, has an atypical appearance delaying the appropriate diagnosis. This is a much less likely scenario for liability, but still problematic. To reduce this risk, the dermatologist's response should be stated in general terms and include a caveat that the proper course of treatment in a particular case is fact dependent. The dermatologist should recommend that the individual consult with a dermatologist for a full evaluation prior to making any treatment decisions.
These informal situations are difficult to avoid. But if handled properly, if courtesy is accompanied by caution, they are far less likely to lead to later legal difficulties.
James R. Kahn, Esquire is a senior partner and Gregory D. Hanscom, Esquire is an associate of the law firm Margolis Edelstein. www.margolisedelstein.com
There are numerous scenarios in which adermatologist may be asked to comment on a case or provide guidanceto a medial colleague or an acquaintance. The law is inconsistentregarding the existence of a physician/patient relationship in many ofthese situations. Therefore, the clinician sharing advice should makeclear the nature of their comments, encourage a full consultation whenindicated, and document conversations in the proper way. If handledproperly, if courtesy is accompanied by caution, these situations are farless likely to lead to later legal difficulties.