1. Setting the Scene:
The story starts, as it does for many physicians, with a telephone call. A subspecialist in our example, a stroke neurologist receives a call from a colleague at a rural hospital. The colleague describes a case concerning a particular patient, whom the colleague suspects to have suffered a stroke. The colleague outlines his proposed plan, including diagnostic testing and procedures. The colleague asks the stroke neurologist whether the plan sounds reasonable. The stroke neurologist agrees that it does, and goes on about her day.
Later, the colleague makes another call to the stroke neurologist. The colleague states that he performed diagnostic testing per his plan, but the results were inconclusive. The colleague asks the stroke neurologist for advice on what to do next with regard to the patient. The stroke neurologist recommends that the patient be transferred to the metropolitan hospital where she has staff privileges.
The patient is transferred to the metropolitan hospital, and later suffers complications there. The stroke neurologist never sees the patient, and never reviews his chart. However, the colleague at the hospital has documented in the medical record that he has consulted with the stroke neurologist, and identifies her by name.
This hypothetical situation may sound familiar. Perhaps some of you have given informal advice under similar circumstances. In fact, a recent study of primary care hospitalists and subspecialists revealed that both groups participated in curbside consults at least once a week. Moreover, the participating physicians indicated that these informal consultations were an important way to share information, educate each other, confirm their own knowledge, and improve quality of care. They also noted that these informal discussions often lead to formal consultations when needed.
2. Identifying Possible Issues:
The benefits of these socalled "curbside consults" are wellknown. The potential risks of this practice, however, may not be as obvious or as recognized.
Our example begs the question of the potential liability the stroke neurologist could face, in the event that the patient files a lawsuit for medical malpractice. Unfortunately, the law in Kentucky is not clear. Courts in our Commonwealth have not yet addressed the impact of curbside consults on malpractice cases, or determined whether such informal consultants may be the basis for malpractice liability.
Kentucky law requires that a plaintiff prove that a physician has a duty to him as a patient, the duty was breached, he suffered injuries and other damages, and the physician's breach of duty caused his damages. The existence of a duty owed by the physician to the patient is usually based upon the existence of a traditional or formal physicianpatient relationship.
Returning to our example, there is no dispute that the stroke neurologist did not form a traditional physicianpatient relationship with a patient that she never examined or treated. It is possible that in the future, however, Kentucky courts will find a less formal relationship to provide a sufficient basis for a physician's duty to the patient, and therefore, potential liability for malpractice. In a 2007 case, the Kentucky Court of Appeals determined that a obstetrician owed no duty to a patient where she did nothing more than notify a hospital, for which she was on call, that she would not be able to perform a ultrasound until the following morning. The court emphasized that the obstetrician was at another location and never available to offer medical assistance; never saw or examined the patient; never spoke to the patient or consulted or provided advice; never reviewed the patient's chart; never consulted with another obstetrician while the patient was under her care; never rendered orders; never provided any opinions or recommendations; and did not participate in the diagnosis or treatment. Thus the court determined that the obstetrician "did nothing that constitutes an undertaking to render medical care" to the patient. The court emphasized that a physician's duty to a patient arises when, by word or deed, he or she "agrees to treat a patient".
Kentucky courts have not yet indicated if or when "treatment" by a physician potentially begins at the time of a curbside or informal consult. The things the Court of Appeals noted were not done by the physician who was found to have no duty to the patient reviewing the chart, providing advice or recommendations, consulting with the other physician, and participating in the diagnosis or treatment suggest that a future Kentucky court may find an "agreement to treat" in circumstances that fall short of a full consultation.
Amidst this uncertainty, the stroke neurologist in our example could possibly find herself embroiled in litigation if a suit is filed regarding the patient's care. Even if she was not identified by name in the medical record, the colleague may be asked at deposition whether he consulted with any other physicians regarding the patient's care and the colleague would be required to answer truthfully, which might implicate the stroke neurologist.
If the stroke neurologist is identified as having provided some advice in the curbside consult regarding the patient's care, she may very well find herself a named defendant in the lawsuit. This is largely due to the fact that Kentucky has adopted the doctrine of comparative fault, also known as comparative negligence. Comparative fault allows the jury to apportion fault among the various parties to the lawsuit including the plaintiff, multiple defendants, and thirdparty defendants. Each party will be liable for that portion of the judgment equal to his, her or its percentage of negligence. Fault attributed to the plaintiff does not bar his or her recovery, but instead reduces his or her recovery by an amount equal to his or her share of the fault.
The comparative fault doctrine adopted in Kentucky provides litigants with an incentive to bring all possible responsible parties before the court. Another provider who has been sued, such as the colleague in our example or the hospital for which he works, may seek to bring the stroke neurologist into the suit as a thirdparty defendant in order that the jury might "apportion" some degree of fault to her and away from the colleague and/or the hospital. Similarly, a plaintiff benefits by having more potential "pockets" from which to recover, in settlement or if the case is tried to a verdict.
Of course, the stroke neurologist may not ultimately bear any liability to the patient. She and her lawyers may be successful in arguing that her involvement in the patient's care was informal and minimal, and did not amount to an "agreement to treat" or physicianpatient relationship upon which a duty could be premised. To get to that point, however, the doctor and her attorneys will likely be required to expend a large amount of time, energy and expense in defending the lawsuit.
3. Implementing Best Practices:
So what's a doctor to do? How can a physician continue to engage in helpful, productive and effective informal consultations without potentially exposing herself or her colleagues to liability?
No one can stop an unhappy patient from filing a lawsuit. Fortunately, there are some best practices that a physician can follow to minimize the possibility that she will find herself on the receiving end of a subpoena for a deposition, or a summons naming her as a party to a lawsuit.
First, the physician who is asked to provide a curbside consult should identify the nature of the consult and make sure she understands what is being asked. Is it a general question about what tests might be indicated given the presentation of certain symptoms? Or is it a specific discussion about a particular patient and the complexities of his care? The more specific and complex the issues, the greater the indication for a formal consultation. In particular, where the question involves an emergent care situation or a critically ill patient, the physician who is being consulted should not hesitate to request an immediate transfer to a higher level of care where the patient can be formally examined and appropriately treated.
The physician should also consider the risk of being wrong. In particular, the physician should consider the possibility that she is not being given the accurate or complete information she needs to provide a sound opinion. A recent study conducted at the Denver Health Medical Center compared the recommendations made by a hospitalist during a curbside consult to those from a formal consult. That study determined that in 51% of the 47 cases studied, the information given during the informal consult was inaccurate or incomplete. The study also found that 60% of the patients had different management recommendations after a formal consult, with 36% of those recommendations representing major changes. It is possible that the physician asking for the consult does not know what information the physician being consulted will need to provide an accurate opinion, or may forget a pertinent piece of information.
If the physician ultimately decides to provide a curbside consultation, she should consider the following guidelines:
- Keep the consultation brief and simple. Where possible, provide a general answer to a general question, and qualify your answer in that way. If the case involves consideration of multiple variables, or an indepth discussion of the patient's course and care, a formal consultation should be requested
- Have a low threshold for suggesting a formal consultation. The physician should offer the option of a formal consultation as a courtesy any time the complexity of the case suggests that this may be appropriate, or if the physician requesting the consultation contacts the physician multiple times for advice
- Emphasize to the physician requesting the consultation that the advice being given is not a treatment decision for a specific patient. If the requesting physician continues to insist that a treatment decision be made, a formal consultation should be requested
- The physician may want to request that she not be identified in the patient's medical record. While her identity may still be subject to disclosure during the course of a deposition or other discovery if litigation results, this will make the physician providing the consultation a less likely target.
Finally, the following is a good guideline to keep in mind in considering whether to provide an informal, curbside consultation: if responding to the request for an informal consultation requires you to give specific advice that the consulting colleague will rely upon to make a diagnosis or select treatment, you should request a formal consultation. If you provide a curbside consult in such circumstances, a court may very well find that you are participating in the patient's care, agreeing to "treat" a patient that you have not seen, and ultimately owe some duty to the patient upon which malpractice liability can be premised.
About Victoria E. Boggs Ms. Boggs practices with the law firm of Napier Gault Schupbach & Moore, PLC. Napier Gault Schupbach & Moore is an AVRated® Louisville, Kentucky litigation boutique and is recognized by the A.M. Best Company® as an industryrecommended law firm and defends regional, national and international clients against highrisk, complex litigation claims. Focus practice areas are medical malpractice, products liability, toxic/mass tort, and general liability defense.
Victoria is currently a barrister member of the Louis D. Brandeis Inn of Court and a member of the Young Lawyers Section of the Louisville Bar Association. She serves as the cochair of the membership committee and member of the board of the Louisville Chapter of the National Association of Women Business Owners, and is a member of the Junior League of Louisville and serves on its Urban Garden Committee. She is also an adjunct professor at the Salmon P. Chase School of Law at Northern Kentucky University.
www.napiergaultlaw.com
