Reducing Risks of “Curbside Consults”

You receive a text or an email: “Do you have a minute to go over some lab values?” or “I have a patient with abdominal pain, can I run something by you?” Curbside consults are a common practice where medical advice is requested from a healthcare provider who has not performed a formal assessment on the patient.  It is an integral part of training and education, aimed at spreading knowledge and improving patient treatment and care. In most instances, these types of consults involve minimal legal risk to the consulting provider. However, liability can be created where the consulting provider inadvertently establishes a physician-patient relationship.

One of the first elements a plaintiff must establish in a medical malpractice lawsuit in Virginia is a physician-patient relationship. One Virginia Supreme Court case, Lyons v. Grether, defined a physician-patient relationship as “a relationship that springs from a consensual transaction.”[1]  Prosise v. Foster provided further guidance and described the physician-patient relationship as a “consensual relationship in which the patient’s care [is] entrusted to the physician and the physician [accepts] the case.”[2] The Court has also held that the issue of whether a physician-patient relationship exists is a question of fact for the jury.[3] Therefore, if the jury believes that based on the factual circumstances a physician-patient relationship exists, a lawsuit can proceed against that consulting provider.

Although not all inclusive, there are several common factors that suggest a formal consultation which in turn could create a physician-patient relationship: (1) complicated diagnostic situations (2) personal examination of the patient (3) advice based on detailed discussion that is specific to the patient’s situation (4) patient requested the consultation (5) the consultant performed an assessment, plan, recommendations, and orders, and (6) the consultant bills the patient.[4]

In contrast, informal consults, which do not establish a physician-patient relationship, are more limited in scope. “The provider does not see the patient, does not review the chart, does not participate directly in the care plan, does not write in the chart, offers mostly general academic advice, and does not bill for services performed.”[5]

There are a number of ways providers can limit their exposure to liability when informally consulted:

• Advise the consulting physician that advice is educational in nature and is not intended to be a treatment decision.
• Keep curbside consultations brief and simple. For more complex cases such as those requiring consideration of two or more confounding variables or detailed discussion of the patient’s history and physical examination findings, formal consultation should be considered.
• Recommend formal consultation when a curbside consultation regarding a specific patient has to be repeated.
• If the request is by email, keep your advice general and include a disclaimer, e.g., ““This information is intended to be educational in nature for consideration by you in your own decision-making process for the patient.  It is not intended as a substitute for a formal consultative visit. If you believe the information provided is either unclear or insufficient to address your questions or concerns, a standard consultation is recommended.”

Curbside consults are frequent and difficult to avoid, especially in the setting of an academic medical center; however, if managed appropriately, providers can minimize their liability exposure. If you have questions about curbside consults or liability concerns of any nature, please contact Piedmont Liability Trust at 434-296-2100.

[1] Lyons v. Grether, 218 Va. 630, 633, 239 S.E.2d 103, 105 (1977)

[2] Prosise v. Foster, 261 Va. 417, 424, 544 S.E.2d 331, 334 (2001)

[3] Id.

[4] Mossman, Douglas. ‘Curbside consults’: Know your liability Douglas Mossman, M.D. Current Psychiatry 2012; 11(6):42-45

[5] Pope, Thaddeus. Curbside Consults: New Liability Risks to Avoid When You are Not a Patient’s Physician. The ASCO Post, June 25, 2019.   Available at https://www.ascopost.com/issues/june-25-2019/new-liability-risks-to-avoid-when-you-are-not-a-patient-s-physician/. Accessed November 2019.