Curbside Consultations

| May 19, 2010 | 0 Comments

Psychiatry (Edgemont) 2010;7(5):51–53

Question: Frequently, a colleague will catch me in the hallway at the hospital or at a professional meeting and ask my opinion about a patient he or she is treating even though I have never seen the patient. Although I end up discussing the case, I wonder if this presents a medical malpractice liability risk. In fact, I sometimes ask my colleagues for a curbside consult and find that discussing a case can be very helpful. Is this a liability risk?

Answer: Medicine is a collegial profession both in theory and in practice, and physicians consult with one another regularly. Indeed, there is an expectation of consultation, particularly when faced with a situation beyond one’s usual area of expertise.

Formal and informal consultation

Formal consultation. In a formal consultation, the treating physician refers the patient to another physician, often a specialist, in order to obtain formal guidance on some aspect of the patient’s care and treatment. The consultant performs the evaluation—in-person or by reviewing treatment records, studies, test results, or other pertinent information—and documents the evaluation either in the patient’s record or by providing a written opinion or report. The consultant does not write orders, write prescriptions, or take any other kind of action regarding treatment. The consultant typically is paid for this work.

Informal consultation. Informal consultations are sometimes referred to as “curbside,” “hallway,” “elevator,” or “sidewalk” consults. Curbside consults are a desirable, well-accepted part of medical practice. In a curbside consultation, the treating physician seeks informal information or advice about patient care or the answer to an academic question from a colleague. Often the colleague has a particular expertise or talent that can be brought to bear.

Curbside consults are typically based on the treater’s presentation of the case or by posing direct questions. The colleague consultant does not see the patient or review the chart. The colleague is not paid for the consultation.

Professional liability is minimal. Physicians occasionally voice concern about the professional liability risks associated with providing curbside consults. While it is true that liability risk exists in any professional undertaking, including providing curbside consults, it is important to maintain a realistic perspective.

To begin with, providing a consultation—whether formally or informally—is an extremely low-risk undertaking. Information from medical malpractice carriers and reports in the literature demonstrate that curbside consultants are very rarely included in a lawsuit. This limited risk is related to the concept of control in the therapeutic relationship.

Generally speaking, the degree of professional liability risk exposure inherent in a professional relationship is directly related to the degree of control, either real or perceived, that the psychiatrist exercises over patient care decisions. In other words, the greater the degree of control, the greater the liability risk exposure. This makes sense as liability derives from the physician-patient relationship and the subsequent duty of care owed to the patient.

In a formal consultation, the consulting physician provides an opinion but does not treat. The treating physician requesting the consult is entirely free to accept or reject—in whole or in part—the opinion and recommendation of the consultant. Therefore, it is the treating physician who retains most of the liability risk.

In the case of a curbside consultation, the physician giving the opinion is often viewed as providing a service to the physician seeking consultation rather than to the patient. In fact, a patient may not even know if or when her or his physician obtained a curbside consult.

Even if a professional relationship were to be found by a court to exist between a patient and a curbside consultant, in order to prevail in a lawsuit, the plaintiff would have to prove that the consultation was negligently done and was a direct/proximate cause of her or his injury. This is a fairly challenging undertaking considering that the physician seeking the curbside consult remains free to exercise her or his own professional judgment in accepting, rejecting, or otherwise relying on the consultant’s advice.

Lest anyone decide that the risk of obtaining a curbside consult is still too great, bear in mind that seeking consultation from a colleague is one of the best risk-management strategies available. Seeking curbside consults with colleagues when appropriate shows thoughtfulness by the treating physician, and without doubt, patient care benefits when physicians are able to obtain informal consultation.

One concern regarding curbside consults is that an informal consultation might be sought when a formal consultation would be more appropriate. Whether a formal consultation would be more appropriate is a matter of judgment for both the treating and consulting physicians. Some factors to consider, among others, when deciding whether or not to obtain a formal or informal consultation are listed in Table 1.

Documentation and the curbside consult

There is no consensus about how to approach documentation of informal consults. While this lack of clear guidance can be anxiety provoking, the upside is that it gives physicians significant leeway about whether and how to document such encounters. In other words, you have significant discretion to exercise your professional judgment.

From a risk-management perspective, documentation of informal consults can be an important risk-management action. When deciding your overall approach to documentation, try to be consistent. For example, try to be consistent about what kind of information is documented and how that documentation is maintained.

Seeking a curbside consult. When seeking a curbside consult, consider whether the advice or input that you seek might be more appropriate for a formal consultation. Avoid documenting the name of the colleague from whom you obtained an informal consult unless you have obtained the colleague’s permission to do so.

Giving a curbside consult. When asked for a curbside consult, first, make sure you understand exactly what is being asked of you. Have a low threshold for suggesting a formal consultation. Remember that the treating physician controls patient care. If you direct care (for example, order laboratory tests, write prescriptions, or adjust medications) you will almost certainly be establishing a professional relationship with all the attendant obligations and liability risks.

If the advice you give is academic and solely for the education of the provider seeking the consult, then typically it should not be necessary to document the encounter. If the advice that you give is more patient-specific, consider creating a note of the encounter that details the advice that you gave. In the highly unlikely event that you are named in a lawsuit, such contemporaneous documentation would serve to bolster your defense. If documentation of a curbside consult becomes lengthy, it is probably best to suggest a formal consultation.

Finally, offering a specific diagnosis via curbside consult is risky. The foundation of successful treatment is an accurate, well-founded diagnosis. It is at the point of diagnosis that the decision tree branches into multiple, potentially erroneous courses of action. Diagnostic formulation probably should not be entrusted to a curbside consult. Because of the potential stakes, the same likely holds true for most admission or discharge decisions. Diagnosis and admission or discharge decisions in most cases should be the subject of formal consultations rather than curbside consults.

Resources
1. Michael A. Chabraja, JD, Monica C. Wehby MD. Roadsided by the curbside consultation: what constitutes a physician-patient relationship? AANS Bulletin. 2006;15(4) http://www.aans.org/
bulletin/pdfs/winter06.pdf. Accessed on May 6, 2010.
2. Kreichelt R, Hilbert ML, Shinn D. Minimizing the legal risks with ‘curbside’ consultation. J Healthcare Risk Manag. 2008;28(1):27–29.
3. Perley CM. Physician use of the curbside consultation to address information needs: report on a collective case study. J Med Libr Assoc. 2006;94(2):137–144.
4. Baker K. A doctor’s legal duty—erosion of the curbside consult. http://findarticles.com/p/articles/mi_qa4023/is_200204/ai_n9035248/?tag=content;col1. Accessed May 7, 2010.
5. Olick RS, Bergus GR. Malpractice liability for informal consultations. Fam Med. 2003;35(7):476–481.
6. The American Psychiatric Association. Guidelines for Psychiatrists in Consultative, Supervisory, or Collaborative Relationships with Nonmedical Therapists. http://archive.psych.org/edu/other_res/lib_archives/archives/198001.pdf. Access date May 6, 2010.

Submit your own question
To submit a question, e-mail Elizabeth Klumpp, Executive Editor, eklumpp (at) matrixmedcom.com. Include “Risk Management Column” in the subject line of your e-mail. All chosen questions will be published anonymously. All questions are reviewed by the editors and are selected based upon interest, timeliness, and pertinence, as determined by the editors. There is no guarantee a submitted question will be published or answered. Questions that are not intended for publication by the authors should state this in the e-mail. Published questions are edited and may be shortened.

DISCLAIMER: This ongoing column is dedicated to providing information to our readers on managing legal risks associated with medical practice. We invite questions from our readers. The answers are provided by PRMS, Inc. (www.prms.com), a manager of medical professional liability insurance programs with services that include risk management consultation, education and onsite risk management audits, and other resources to healthcare providers to help improve patient outcomes and reduce professional liability risk. The answers published in this column represent those of only one risk management consulting company. Other risk management consulting companies or insurance carriers may provide different advice, and readers should take this into consideration. The information in this column does not constitute legal advice. For legal advice, contact your personal attorney.

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Category: Neurology, Past Articles, Psychiatry, Risk Management

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