You create a physician-patient relationship when you assume responsibility to diagnose or treat someone.7 Although typically this requires an in-person encounter with a patient, it can happen indirectly—electronically (through e-mail), by telephone, or through a family member or another professional. But if you do nothing that implies consent to act for the patient’s benefit, you should have no actual malpractice liability if something goes wrong.3,8 As a Kansas Supreme Court decision explains, you “cannot be liable for medical malpractice” if you “merely consult with a treating physician and [do] nothing more.”5
Several legal cases discuss doctors’ efforts to extricate themselves from lawsuits arising from clinical encounters that the doctors mistakenly thought were just curbside consults. Table 18-12 lists situations in which talking about patients goes beyond just being “curbsided.”
Table 1
When it’s not a ‘curbside consultation’
| Situation | Why it’s not a curbside consultation |
|---|---|
| On call | If you are “on call” for an emergency room, get called about a patient with an emergency condition, and discuss the patient’s symptoms, possible diagnosis, or treatment, you have a relationship with the patient that entails a duty of care8,9 |
| Covering | If you have agreed to “cover” patients for a colleague, you have assumed a duty to properly care for the colleague’s patients: they’re your patients during the colleague’s absence. Getting asked questions about managing those patients is not a curbside consultation, even if you’ve never met or spoken to the patient10,11 |
| Supervising | Physician assistants, residents in training, and nurse practitioners do not practice independently of their supervising physicians. If you’re a supervisor and get a call about managing a patient, you may bear vicarious liability for adverse results12 |
| Specifics and reliance | If responding to the informal consult requires you to give specific advice that the consulting colleague will rely on to make a diagnosis or select treatment, you are participating in the patient’s care11 |
How to respond
Should you decline to provide curbside consultations to keep yourself out of lawsuits? Some authors think so, pointing out that informally transmitted clinical data may be faulty, which means you may give bad advice based on incomplete information or a verbal misunderstanding.13-16 These authors suggest that if you’re curbsided you should ask to see the patient for a formal consultation, decline to give informal advice, or provide a response that lacks specifics.
Other authors feel that these approaches are needlessly cautious and would harm patients by impeding doctors’ ability to help and learn from each other.3,17 These authors think the risk of incurring liability from a curbside consult is low. Also, getting advice from a colleague is a valuable risk management strategy; it helps you make sure you’re on the right track, and it shows you are a thoughtful clinician whose patients benefit from your own and your colleagues’ medical expertise.
Even if you’re comfortable soliciting and providing curbside advice, sometimes circumstances make it wise to follow-up an informal initial inquiry with a formal consultation. Table 23,17 lists examples of when you should follow-up with a formal consultation.
Table 2
Considerations that favor formal consultation
| Complicated diagnostic situations |
| The consulted or requesting physician feels that giving good advice requires a personal examination |
| Advice is based on a detailed discussion and is specific to a patient’s situation |
| The patient requested the consultation |
| The consultant will make a report for the patient’s record |
| The consult bills for the consultation |
Documentation
Experts disagree about whether the requesting or receiving physician should document a curbside consultation, and if so, how. On one hand, making a notation in a patient’s record documents the treating doctor’s diligence and may provide a measure of liability protection in a malpractice action. Doing this, however, exposes the identity of the consultant, who might be named among the defendants in a lawsuit.
One commonly recommended strategy is to request the consultant’s permission before identifying him or her in the record,13,16,17 a position that is defensible on grounds of courtesy alone. But omitting a consultant’s name from record does not guarantee that the consultant’s involvement won’t be discovered in the course of litigation.3 For example, treating doctors who get sued often are asked during their depositions about whether they talked with anyone about the case, and they have to answer honestly.
If a consulted doctor makes written notes, it might suggest that the consultation was more than the sort of informal information-sharing implied by the term “curbside.” However, in the unlikely event that a lawsuit arose and included the consultant as a defendant, documentation of advice given would help the consultant recall and defend what was said.