The Risk Of Curb-side Consultations

The "Curbside Consult"

We have all done it. 

You see Mark in a hospital hallway and he asks, “Hey Frank, I have a patient with XYZ symptoms….what do you think?”

When this happens, you provide a quick thought about what might help a colleague get to the root of a patient’s problem.  But you always thought that it was “off the record” and wasn’t really a part of the patient’s care.  That, after all, was Mark’s issue.  He is the physician who is responsible for the patient.  He is the one where the buck stops.

 Perhaps that’s what you thought, but the reality may be far from that. 

While we have all heard horror stories where a physician who provides a curbside consult gets sucked into a malpractice case, they seemed to be infrequent. But that may not be the case in the future.

Minnesota – April 17, 2019 : Minnesota Supreme Court

Mark this date.  On that date, the Minnesota Supreme Court ruled that a physician-patient relationship is NOT necessary to be sued for malpractice.  They have ruled that a physician can be sued even if the individual and the physician do not have a relationship if the individual suffered harm as a “reasonably foreseeable consequence” of the physician’s actions.

Note:  This post is provided for educations purposes ONLY and is not intended to provide any form of legal or binding advice.  You alone are responsible for any actions you take or fail to take, on this topic or any related topic.  

In this case, the primary person who had a relationship with the patient was a nurse practitioner.  The physician was a hospitalist who was randomly assigned to take the call.  The specifics of the case can be found elsewhere (Read More Here), and won’t be covered here.

What can you do to protect yourself against this malpractice risk?

Now, having heard this, here are my thoughts  (as a physician, not as expert legal advice…) 

1. It’s time to treat every interaction between two healthcare providers as a risk event. Even if YOU don’t think it is, it probably could be perceived as that, or made into such an event, by an injury attorney.
2. Document every interaction as a real consultation in the patient’s chart. Yes, it’s time to document … and bill … for that service. You are being held to a standard that warrants getting paid for your services. 
3. Refuse to provide consultative (official or curbside) services to other physicians (and non-physician providers) without having access to all of the information that you need to provide an informed opinion. No more informal consults.
4. Document, in writing, who is responsible for the patient’s follow up. This may be in the chart, or at a minimum, in a letter to the person who approached you with the patient’s name, time, date, the information that was provided to you, any information that you requested (but did not receive), your thoughts and any suggestions or recommendations. You may also add that the final decision on the care and treatment for the patient rests with the other provider and that your opinion should not be considered recommendations for care or treatment, which should only be determined with the full knowledge of the patient's data, including history, physical examination, and other diagnostic data.  While this may seem long-winded, you can create a “macro” with such disclaimer to be used in such communication.

Now as a physician, (not an attorney), these thoughts and ideas may not survive the legal test in a court of law, but I do think that they are good common sense, and I don’t believe that they will put you in a worse position and can likely help.

The world of medical malpractice is getting worse by the day because the injury attorneys are driving the bus (or should I say limo), filled with other attorneys and judges.  Physicians are not even in the game, except as the deep pocket paying these plaintiff attornies, either directly or indirectly.

In this particular setting, perhaps the one thing that you can do to virtually eliminate this risk is to no longer provide any informal or undocumented consultations to other physicians or healthcare extenders.  If you don't provide that service, you can't get sued for it (at least at this time...).

It’s a sad day when the collegial interaction between providers, intended for the benefit of patients, has been sued and litigated out of existence. 

Unfortunately, that day is here.

Interested in the full text of the decision?  Click Here.

WhiteCoat Risk Management provides these articles to help improve general risk awareness in all aspects of your life.  It is not responsible for any actions you take or fail to take regarding any aspect of your financial planning or risk management.  This article is provided for information purposes and is not intended to provide individualized advice. You alone are responsible for your financial decisions.  

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