This article is more than 5 years old. Information may no longer be current.
Professional duty created by patient consultations: Know for whom and when you are responsible
Click Here to Manage Email Alerts
 Lawrence H. Brenner |
 B. Sonny Bal |
Informal consultations among colleagues, also known as curbside consults, are relatively frequent among primary care or emergency care doctors and specialty physicians such as orthopedic surgeons. Not uncommonly, an orthopedic surgeon may be called by an emergency room doctor, or a referring primary care doctor, while in the operating room or in clinic, to render an opinion about a patient that the caller is dealing with in a different environment. Phone calls are a common means of such curbside consults, although in-person consultation, and increasingly, e-mail solicitations for professional opinion may be sought by one’s professional colleagues.
Curbside consultations are part of the medical culture. Often, the patient is unknown to the consultant, and specialty opinion is provided based on limited information that can be addressed in general treatment recommendations. The fear among the specialty professionals is of course that the care rendered during a quick, informal consultation may lead to increased risk of medicolegal exposure. In this article, we examine some of the risks related to this concern and specifically present cases from a recent article that addressed this issue by Cotton in the American Journal of Cardiology. Given the hesitation and controversy related to orthopedic physician coverage of emergency rooms at community hospitals around the nation, this topic is timely and worthy of inquiry.
The doctor-patient relationship
While patient allegations of medical negligence may be too common, it is important to recall that true medical liability is predicated upon the establishment of a doctor-patient relationship. Only when such a relationship is established, as a threshold step, does the duty of professional care even arise. Once the legal element of duty is established in a situation where a doctor-patient relationship can reasonably be inferred from the underlying circumstances, the other elements of professional negligence come into play. Those elements are related to breach of duty, injury, and damages flowing from such. Because the element of duty arises from an inference of the doctor-patient relationship, it is important to explore just when this relationship can be reasonably inferred, from the factual circumstances.
A doctor-patient relationship arises when a physician engages in that professional conduct vis-à-vis a patient, which establishes a contact with the patient. Such contact may be in person; for example, in the doctor’s examining room or it may be through the mail, a professional website, by fax, e-mail, or social media such as Facebook, Twitter, or other methods of communication. Whether such contact is direct, or indirect, such as a family member calling the doctor on behalf of a sick relative, or an emergency room (ER) doctor calling on behalf of a patient under his/her care, a doctor-patient relationship arises when the consultant physician assumes some degree of professional responsibility for the diagnosis, treatments, or related medical care of a patient. Short of this threshold, a doctor-patient relationship is not established, and one can argue that the element of professional duty is never invoked.
In sum, courts will look for some “contact” between a doctor and patient, and whether or not the doctor took “responsibility” for the patient, or by virtue of the attendant circumstances, was professionally situated such that he/she could reasonably be assumed to have taken responsibility for the patient. The following analyses will help flush out these concepts in more detail.
Professional duty
Practically, the question is whether or not mere informal, curbside discussions between two doctors, by phone call or otherwise, cause the formation of a doctor-patient relationship? More pointedly, if we assume correctly that the consulting physician has a duty of professional care to the patient, does mere consultation with another doctor cause a springing of that duty onto the consultant? Most courts have rejected such an expansion of the element of professional duty. For example, Cotton quoted a 2001 Kansas State Supreme Court decision that succinctly distinguished the role of consulting and consultant physicians as, “A physician cannot be liable for medical malpractice where he or she merely consulted with a treating physician and nothing more. [On the other hand] a physician who assumes the role of treating the patient … can be liable for medical malpractice.”
State court decisions have generally adhered to the above common-sense logic. In NBD Bank v Barry, a Michigan appeals court found that a specialist who was consulted about a patient on multiple occasions, who made specific recommendations and even reviewed the patient chart, had no liability since he was not formally consulted and made no contact with the patient, nor wrote anything in the medical chart. Under these circumstances, according to the court, a doctor-patient relationship was never established.
Legal technicalities aside, courts have also been sympathetic to the value of curbside consults in the practice of medicine. In Reynolds v Decatur Memorial Hospital, a 1996 Illinois appellate case, the court noted that extending liability to physicians who rendered curbside consults would have an undesirable, discouraging effect on the communication, education and professional association among medical professionals, to the detriment of the patient. This case is noteworthy, because in similar instances related to non-medical issues, courts have likewise recognized the social and policy implications of judicial decisions, and have refused to extend liability where substantive social harm would follow, even if the extension of such liability could be argued persuasively and perhaps correctly from a purely logical standpoint.
Informal consults
Before assuming that no professional liability attaches to curbside consultations, a physician must recognize what constitutes such an informal consult. For example, being on call for a hospital ER, and answering a call asking for a professional opinion is not a curbside consult; instead such a situation triggers the Emergency Medical Treatment and Active Labor Act (EMTALA) and adds another layer of legal obligation. Under EMTALA, an ER and its on-call physicians owe a duty of care to any person who presents with an emergency medical condition. Courts have held that under EMTALA, once an on-call physician, such as an orthopedic surgeon, is consulted for the benefit of a patient in the ER, a doctor-patient physician is established between them. This relationship is derived from the discussion of that patient by the ER physician with the on-call doctor; the only way to avoid this duty is to not be on call in the first place. Talking to the ER doctor about an indigent, homeless patient with a distal radius fracture and a swollen forelimb, for example, is definitely not a curbside consult.
Likewise, covering for a colleague is not a curbside consultation; the covered patients are now indistinguishable from the covering doctor’s own patients. This is an important point, even though the covering doctor may never have seen, examined, or treated any of the patients that he or she is covering, a doctor-patient relationship is nonetheless established with every one of the patients for whom the covering doctor has implicitly agreed to take responsibility. A Michigan court has addressed this point in the 2003 case of Blazo v McLaren Regional Medical Center. A patient was in the hospital for carpal tunnel symptoms when she went into labor. Her obstetrician was unavailable, and the nurse spoke about the patient with a covering partner. In a subsequent lawsuit related to fetal compromise, the covering partner was held liable by the court, which distinguished between an informal consultation vs. a situation, similar to the one at hand, where one physician has undertaken the responsibility of covering for the physician who would otherwise have been the treating doctor.
Similar principles have guided courts in attaching liability to attending physicians who exercise liability over other professionals who do not have independent authority to act on their own and make medical decisions. Thus, a consultation with a nurse practitioner, physician assistant or resident concerning a patient will make the consulting doctor enter into a duty of professional care with the patient, even though the consulting doctor may know nothing about the patient, other than what he or she learned through the curbside consult, from a party over which the consulting doctor exercised professional authority. And subspecialists, such as radiologists interpreting imaging studies, or pathologists and cardiologists interpreting specimens or tests, have been held to have a limited doctor-patient relationship whereby they are legally liable to the underlying patient for issuing proper interpretation. These physicians obviously never see, touch, examine or interview the patient, but they formally participate in the care of patients whose studies they are charged with interpreting.
To summarize, a consulting doctor will probably be held to have not entered in a doctor-patient relationshipas long as a curbside consultation between colleagues is: informal; occurring between doctors who are not subordinate to the other; involves a doctor who does not have a pre-existing relationship with the patient in question and who is not covering for another doctor who has such a relationship with the patient; not pertinent to on-call ER coverage; not involving any contact between the doctor and the patient in question; does not result in medical record documentation; and, not resultant in financial remuneration for the doctor. Where any of these elements are in doubt, it is safest to assume that you are as responsible for the patient being consulted on, as you are for a patient on whom you operate.
What do you think?
Your colleague took off for vacation, leaving you covering for two in-house patients, both of whom you discharged uneventfully from the hospital. Later that afternoon, you are surprised by a call concerning another postoperative patient of your colleague, in the rehab unit, of whom you had no knowledge. The nurse calls you, stating that the rehab doctor wants you to know about a swollen leg, and that a venous Doppler has been ordered. Do you have a duty of professional care to this patient? Or is this merely a courtesy call, to convey information about a patient workup that is entirely appropriate, and being handled correctly by the rehab physician who is covering all patients on the rehab unit? Would your analysis change if the rehab doctor called you to tell you about the swollen leg? What if you agreed with the Doppler study, and promptly hung up the phone? What if you recommended extending anticoagulation prophylaxis for 3 months, and/or consulting the medical doctor if the Doppler were positive, and simply elevating the leg if the Doppler were negative. Was a duty of professional care assumed in any of these scenarios?
Reference:
- Cotton VR. Legal risks of “curbside” consults. Am J Cardiol. 2010;106:135-138.
- B. Sonny Bal, MD, JD, MBA, is associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
- Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.
