Curbside Consultations: The Legal Aspects
February 1, 1997 4 minutes read
Fox et al describe a lawsuit about a 15-year-old boy who was treated with ceftazidine for a Streptococcus mitis meningitis. He responded initially, was discharged, then returned and died with multiple intracerebral abscesses. The advice of an infectious diseases specialist was sought via telephone by the rural community doctor and heeded only to the extent of providing three days of penicillin for what was initially only known to be a streptococcus. The infectious diseases specialist called the community doctor to follow up the day after the initial call, then heard no more until he was named in a lawsuit.
The authors undertook a review of the case law involving informal consultations and found some interesting, although at times conflicting,, information. After an analysis of the cases discovered, they developed a system for gradations of physician responsibility. There appears to be "no duty to care" or legal responsibility when the physician is only informally consulted and the patient is not seen, or seen but not interviewed or examined. This also applies to answering questions during a lecture. There is a "possible duty to care" when the consultant is "on call" or provides a medical opinion about a patient based on a telephone evaluation. This depends in part on the "on call" contract the physician has. There is a "clear duty to care" when the consultant is being paid for "on call" status and evaluates a patient, even if the patient is not seen. This is quite clear for attendings on the teaching service as well as for consultants who work in a capitated or gatekeeper system.
The authors point out the that a consultant’s responsibility springs from a physician-patient relationship, which is basically a contractual one. The relationship depends upon the extent of physician involvement, such as interviewing or examining the patient or the chart before they are formally consulted or taking a role in management of the patient. They also point out the important role of any contracts that are signed with an insurer or managed care organization wherein the consultant agrees to be available and provide advice on patient management as needed. If the consultant’s name is written in the patient’s chart, the potential for liability is certainly there. The authors recommend that consultants keep their own record about the communications lest there be a question about the case or interpretation of the advice later.
An editorial note by Alan Ronald at the beginning of the article suggests refraining from any informal discussions about specific patient management unless there is a system of accountability for the patient, the referring physician, and the infectious diseases specialist.
COMMENT BY ALAN D. TICE, MD
This review of case law on curbside consultations authored by two infectious diseases specialists and an attorney is provocative and quite relevant to the practice of medicine as it is evolving. Case law certainly indicates that the consultant may be held responsible for patient care even though the patient is not seen and even if the physician’s name is not written in the chart. It is frustrating to provide informal consultation only to hear, eventually, that the case did poorly, possibly because the initial advice was not followed or the evaluation not adequate. The additional threat of a lawsuit is troublesome, especially when the outcome of the lawsuit may be more closely related to the damages than any negligence.1
The authors stress the risks of liability with managed care, particularly when a contract to provide informal consultative services is included. This may go so far as to include infection control services and certainly includes academic situations and capitated contracts. In these situations, the infectious diseases specialist may be responsible for the overall quality of the program in regard to infectious diseases, which may include educational programs, guidelines for consultation (be it formal or informal), and ready availability for problems as they arise.
It would be nice if the consultant could have more control over curbside consultations, but it seems this is less likely to be true with managed care rather than more so, depending on the incentives. If the consultant is part of a capitated program, curbside consultations cost no more and theoretically would be used more frequently to help identify problems early and treat them appropriately. Whether this is indeed the case remains to be seen. In a capitated system, the decision for formal consultation lies more with the consultant than the referring doctor.
With all the impact of managed care, the consultant and the referring doctor need to clearly understand their liability with informal consultations. The consultant may need to keep some records of these cases and advice given.
Reference
1. Brennan TA, et al. Relation between negligent adverse events and the outcomes of medical-malpractice litigation. N Engl J Med 1996;335:1963-1967.
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