Curbside Consults

It happens thousands of times a day: A physician is stopped in the hallway of a hospital or gets a phone call or e-mail asking for informal advice about a problem from a fellow physician. They all do it. Physicians offer their advice in these situations because it is helpful to their colleagues and to the patients being cared for. The question is, in today's climate of increasing concern about medical malpractice liability, is it safe for a doctor to give advice when asked by a treating physician?

Why They Do It

Several studies have looked at the medical care field's informal consultation tradition. In a study of 705 Massachusetts medical practitioners, (“Physicians' Experiences and Beliefs Regarding Informal Consultation,” JAMA Sept. 9, 1998-Vol. 20, No. 10), both generalist and specialist physicians said they requested information from sub specialists most often. Recent graduates, and physicians who were not board certified, sought informal consultations. The rationale stated for seeking informal consultations was to gather information, not avoid fees or gain protection from malpractice litigation. As we might expect, generalists were more likely to believe that informal consultations improved the quality of care, while specialists worried that the information they were receiving might be incomplete or inaccurate, and therefore the advice given might not be complete. Specialists were also more concerned about the risk of malpractice litigation than the generalists.

A similar study was done with Rhode Island physicians (“Curbside Consultation Practices and Attitudes Among Primary Care Physicians and Medical Subspecialists,” JAMA, Sept. 9, 1998-V0l. 280, No. 10, p. 905). In that study, 70% of primary care physicians and 87% of specialists reported participating in at least one curbside consultation in the previous week. The most common reasons for obtaining a consultation were to “help select an appropriate diagnostic test, to determine need for a formal consultation, to select an appropriate treatment plan, and to interpret laboratory or radiology data” (at p. 906). More than half of all the surveyed physicians enjoyed the process, but subspecialists were more likely to believe that it was an important part of maintaining good relations with other physicians. As with the Massachusetts specialists, the more specialized physicians expressed concern about the quality of the information provided to them, and therefore the quality of the advice they rendered. To that end, both groups reported that they engaged in three times as many formal consultations as informal ones.

Recent Decisions Back Informal Consultations

Two cases this year have challenged yet again the concept of protection for curbside consults ' both finding that the informal consultation did not result in liability.

In Gilbert v. Miodovnik, 990 A. 2d 983 (D.C. 2010), parents attempted to impose liability on a supervising physician for a midwifery practice. In Gilbert, the defendant, Dr. Menachem Miodovnik, was the Director of Medical Affairs at a birth center as well as a consulting obstetrician. The mother wanted a vaginal birth after prior cesarean section (VBAC), and the doctor discussed the case with a midwife in the practice. He did not examine the patient or review her record. Rather, he asked the midwife to reiterate to the patient the risks of a VBAC. This the midwife failed to do. When the patient went into labor, the backup physician recommended a C-section, and the patient consented. Unfortunately, while being prepped for the surgery, the patient's uterus ruptured and the baby sustained brain injuries.

When Dr. Miodovnik was sued, it was on the basis that he “collaborated on developing and approving a treatment plan.” The court granted summary judgment on the grounds that the doctor never saw the patient, only commented on the care on one occasion, and did not seek or receive compensation for doing so. The midwife was free to exercise independent judgment, and clearly did so, because she did not inform the patient of the risks of a VBAC as advised by Dr. Miodovnik. The court made a point of noting that a physician/patient relationship is created only when both parties consent to it ' something that did not happen here. Nonetheless, the case generated a scathing dissent disputing the notion that a consensual relationship had to have been entered into for responsibility to attach.

The other recent case also involved an obstetrical matter. In Jennings v. Badgett, 2010 OK 7 (Okla.2010), Dr. Blake Badgett called Dr. Stephen Schlinke seeking his advice about a pregnant patient. During the course of the conversation, Dr. Badgett relayed a patient history as well as a report on the patient's current complications. Neither party disputed that, although it was his sole decision, Dr. Badgett relied upon Dr. Schlinke's advice to deliver the baby ahead of time. Without this advice, Dr. Badgett would have “pushed to term.” The court found that no physician-patient relationship existed between Dr. Schlinke and the patient based on the following facts: Dr. Schlinke never talked with the plaintiffs, did not charge them, did not provide or attempt to provide medical care and did not look at the patient's medical chart or records. As the court stated, “Courts generally agree that, under similar facts to those before us, a physician's discussion with a treating physician concerning a patient, without more, does not create a physician-patient relationship and thus, does not create a duty on the part of the non-treating physician.”

Both of these recent cases should be encouraging to physicians who routinely respond to other medical care providers' requests for advice.

Stepping over the Line

Despite the fact that curbside consultations are a fact of life for specialists and do satisfy an important need for patients, specialists worry that these informal encounters will put them at legal risk. They are not simply paranoid. Several cases have indeed found in favor of plaintiffs on this issue. What are the major factors that increase the likelihood that a court will find a physician/patient relationship? The answer is this: formal on-call status for, or presence in, an emergency department.

In Diggs v. Arizona Cardiologists Ltd., 198 Ariz. 198 (Ariz. 2000), an ER physician sought the advice of a cardiologist who happened to be in the ER tending to another patient. The ER physician went over the clinical history of the patient and had the cardiologist review the EKG results. The court found that the cardiologist voluntarily undertook to help and knew that the ER physician would rely on his recommendations. In addition, the cardiologist offered to see the patient in his office in 10 days. Under those circumstances the court found that the ER physician did not have the expertise to make an independent judgment. He needed the cardiologist's expertise and was bound by it.

The ER was the site of another consultation that led to a judicial finding of liability in McKinney v. Schlatter, 118 Ohio App. 3d 328 (Ohio 1997). In that case, an ER physician twice called the on-call cardiologist for specific advice. The on-call cardiologist did not see the patient or review any diagnostic tests, but said that, in his opinion, the problem was not cardiac in nature. On the advice of the cardiologist, the ER discharged the patient, who died within hours of a dissecting aortic aneurysm. The court said, “We find that the lack of direct contact between the patient and the on-call physician does not, in itself, preclude a physician-patient relationship. To find otherwise would allow on-call cardiologists and kindred specialists who, with a duty to do so, provide what one could term 'indirect medical care,' to escape all liability even after rendering a diagnosis and prescribing a course of treatment.”

These are the kinds of decisions that worry specialists who offer to help as “good Samaritans.”

Good Public Policy

One author has summed up the benefits of informal consults this way: “[P]hysicians who consult with respected colleagues are using those conversations to identify and make use of the best medical evidence ' . When clinical questions arise, they apply human intellectual capital to the problem, using the curbside consultation as an access point.” “Physician Use of the Curbside Consultation to Address Information Needs: Report on a Collective Case Study” Cathy M. Perly, J Med Libr Assoc., 2006 April: 94(2): 137-144.

Because the curbside consult is good for the practice of sound medicine, courts have, by and large, been sensitive to and supportive of these informal consultations. For example, in Hill v. Kokosky, 186 Mich. App. 300 (Michigan 1990), the court stated, “The extension of potential malpractice liability to doctors with whom a treating physician has merely conferred, without more, would unacceptably inhibit the exchange of information and expertise among physicians. This would benefit neither those seeking medical attention nor the medical profession.”

The key to avoiding liability is in following a few simple guidelines that keep the informal consultation from creating a doctor/patient relationship. Factors that make for a true curbside consult are these: The physician:

• has not examined the patient;
• has no direct communication with the patient;
• does not review the patient's record;
• has no obligation for formal consultation;
• receives no payment for services;
• gives the opinion and advice solely to the treating physician; and
• the treating physician remains in control of the patient's care and treatment.

“Malpractice Liability for Informal Consultations”, Orlick and Bergus, Fam Med, July-August 2003, 476-481.

Conclusion

Physicians who participate in true informal consultations for the good of patients should rest assured that they are doing the right and ethical thing and will be legally insulated from liability should something go wrong. Indeed as physicians use new modalities for seeking help ' online sites such as Sermo or Ozmosis for instance ' the need for protection from liability becomes more important, not less.

Linda S. Crawford, a member of this newsletter's Board of Editors, teaches trial advocacy at Harvard Law School and has been consulting with defendants on research-based effectiveness at deposition and trial since 1985.

It happens thousands of times a day: A physician is stopped in the hallway of a hospital or gets a phone call or e-mail asking for informal advice about a problem from a fellow physician. They all do it. Physicians offer their advice in these situations because it is helpful to their colleagues and to the patients being cared for. The question is, in today's climate of increasing concern about medical malpractice liability, is it safe for a doctor to give advice when asked by a treating physician?

Why They Do It

Several studies have looked at the medical care field's informal consultation tradition. In a study of 705 Massachusetts medical practitioners, (“Physicians' Experiences and Beliefs Regarding Informal Consultation,” JAMA Sept. 9, 1998-Vol. 20, No. 10), both generalist and specialist physicians said they requested information from sub specialists most often. Recent graduates, and physicians who were not board certified, sought informal consultations. The rationale stated for seeking informal consultations was to gather information, not avoid fees or gain protection from malpractice litigation. As we might expect, generalists were more likely to believe that informal consultations improved the quality of care, while specialists worried that the information they were receiving might be incomplete or inaccurate, and therefore the advice given might not be complete. Specialists were also more concerned about the risk of malpractice litigation than the generalists.

A similar study was done with Rhode Island physicians (“Curbside Consultation Practices and Attitudes Among Primary Care Physicians and Medical Subspecialists,” JAMA, Sept. 9, 1998-V0l. 280, No. 10, p. 905). In that study, 70% of primary care physicians and 87% of specialists reported participating in at least one curbside consultation in the previous week. The most common reasons for obtaining a consultation were to “help select an appropriate diagnostic test, to determine need for a formal consultation, to select an appropriate treatment plan, and to interpret laboratory or radiology data” (at p. 906). More than half of all the surveyed physicians enjoyed the process, but subspecialists were more likely to believe that it was an important part of maintaining good relations with other physicians. As with the Massachusetts specialists, the more specialized physicians expressed concern about the quality of the information provided to them, and therefore the quality of the advice they rendered. To that end, both groups reported that they engaged in three times as many formal consultations as informal ones.

Recent Decisions Back Informal Consultations

Two cases this year have challenged yet again the concept of protection for curbside consults ' both finding that the informal consultation did not result in liability.

In Gilbert v. Miodovnik , 990 A. 2d 983 (D.C. 2010), parents attempted to impose liability on a supervising physician for a midwifery practice. In Gilbert, the defendant, Dr. Menachem Miodovnik, was the Director of Medical Affairs at a birth center as well as a consulting obstetrician. The mother wanted a vaginal birth after prior cesarean section (VBAC), and the doctor discussed the case with a midwife in the practice. He did not examine the patient or review her record. Rather, he asked the midwife to reiterate to the patient the risks of a VBAC. This the midwife failed to do. When the patient went into labor, the backup physician recommended a C-section, and the patient consented. Unfortunately, while being prepped for the surgery, the patient's uterus ruptured and the baby sustained brain injuries.

When Dr. Miodovnik was sued, it was on the basis that he “collaborated on developing and approving a treatment plan.” The court granted summary judgment on the grounds that the doctor never saw the patient, only commented on the care on one occasion, and did not seek or receive compensation for doing so. The midwife was free to exercise independent judgment, and clearly did so, because she did not inform the patient of the risks of a VBAC as advised by Dr. Miodovnik. The court made a point of noting that a physician/patient relationship is created only when both parties consent to it ' something that did not happen here. Nonetheless, the case generated a scathing dissent disputing the notion that a consensual relationship had to have been entered into for responsibility to attach.

The other recent case also involved an obstetrical matter. In Jennings v. Badgett , 2010 OK 7 (Okla.2010), Dr. Blake Badgett called Dr. Stephen Schlinke seeking his advice about a pregnant patient. During the course of the conversation, Dr. Badgett relayed a patient history as well as a report on the patient's current complications. Neither party disputed that, although it was his sole decision, Dr. Badgett relied upon Dr. Schlinke's advice to deliver the baby ahead of time. Without this advice, Dr. Badgett would have “pushed to term.” The court found that no physician-patient relationship existed between Dr. Schlinke and the patient based on the following facts: Dr. Schlinke never talked with the plaintiffs, did not charge them, did not provide or attempt to provide medical care and did not look at the patient's medical chart or records. As the court stated, “Courts generally agree that, under similar facts to those before us, a physician's discussion with a treating physician concerning a patient, without more, does not create a physician-patient relationship and thus, does not create a duty on the part of the non-treating physician.”

Both of these recent cases should be encouraging to physicians who routinely respond to other medical care providers' requests for advice.

Stepping over the Line

Despite the fact that curbside consultations are a fact of life for specialists and do satisfy an important need for patients, specialists worry that these informal encounters will put them at legal risk. They are not simply paranoid. Several cases have indeed found in favor of plaintiffs on this issue. What are the major factors that increase the likelihood that a court will find a physician/patient relationship? The answer is this: formal on-call status for, or presence in, an emergency department.

In Diggs v. Arizona Cardiologists Ltd. , 198 Ariz. 198 (Ariz. 2000), an ER physician sought the advice of a cardiologist who happened to be in the ER tending to another patient. The ER physician went over the clinical history of the patient and had the cardiologist review the EKG results. The court found that the cardiologist voluntarily undertook to help and knew that the ER physician would rely on his recommendations. In addition, the cardiologist offered to see the patient in his office in 10 days. Under those circumstances the court found that the ER physician did not have the expertise to make an independent judgment. He needed the cardiologist's expertise and was bound by it.

The ER was the site of another consultation that led to a judicial finding of liability in McKinney v. Schlatter , 118 Ohio App. 3d 328 (Ohio 1997). In that case, an ER physician twice called the on-call cardiologist for specific advice. The on-call cardiologist did not see the patient or review any diagnostic tests, but said that, in his opinion, the problem was not cardiac in nature. On the advice of the cardiologist, the ER discharged the patient, who died within hours of a dissecting aortic aneurysm. The court said, “We find that the lack of direct contact between the patient and the on-call physician does not, in itself, preclude a physician-patient relationship. To find otherwise would allow on-call cardiologists and kindred specialists who, with a duty to do so, provide what one could term 'indirect medical care,' to escape all liability even after rendering a diagnosis and prescribing a course of treatment.”

These are the kinds of decisions that worry specialists who offer to help as “good Samaritans.”

Good Public Policy

One author has summed up the benefits of informal consults this way: “[P]hysicians who consult with respected colleagues are using those conversations to identify and make use of the best medical evidence ' . When clinical questions arise, they apply human intellectual capital to the problem, using the curbside consultation as an access point.” “Physician Use of the Curbside Consultation to Address Information Needs: Report on a Collective Case Study” Cathy M. Perly, J Med Libr Assoc., 2006 April: 94(2): 137-144.

Because the curbside consult is good for the practice of sound medicine, courts have, by and large, been sensitive to and supportive of these informal consultations. For example, in Hill v. Kokosky , 186 Mich. App. 300 (Michigan 1990), the court stated, “The extension of potential malpractice liability to doctors with whom a treating physician has merely conferred, without more, would unacceptably inhibit the exchange of information and expertise among physicians. This would benefit neither those seeking medical attention nor the medical profession.”

The key to avoiding liability is in following a few simple guidelines that keep the informal consultation from creating a doctor/patient relationship. Factors that make for a true curbside consult are these: The physician:

• has not examined the patient;
• has no direct communication with the patient;
• does not review the patient's record;
• has no obligation for formal consultation;
• receives no payment for services;
• gives the opinion and advice solely to the treating physician; and
• the treating physician remains in control of the patient's care and treatment.

“Malpractice Liability for Informal Consultations”, Orlick and Bergus, Fam Med, July-August 2003, 476-481.

Conclusion

Physicians who participate in true informal consultations for the good of patients should rest assured that they are doing the right and ethical thing and will be legally insulated from liability should something go wrong. Indeed as physicians use new modalities for seeking help ' online sites such as Sermo or Ozmosis for instance ' the need for protection from liability becomes more important, not less.

Linda S. Crawford, a member of this newsletter's Board of Editors, teaches trial advocacy at Harvard Law School and has been consulting with defendants on research-based effectiveness at deposition and trial since 1985.