Just a 'curbside' consult? Court might decide otherwise — Both doctors face legal risks
A primary care physician might not want to take the time to initiate a formal consultation, but decides to quickly run something by a specialist to be sure nothing is missed.
These informal or "curbside" consultations, while common occurrences, pose significant liability risks for the referring physician and the specialist in the event of a medical malpractice lawsuit, warns Sandeep Mangalmurti, MD, JD, a lecturer in law and fellow at the University of Chicago's Section of Cardiology.
If a primary care physician takes action based on a consultant's recommendation and a bad outcome occurs, "the primary care physician is not going to necessarily get away with saying, 'I just did what the consultant wanted me to do, therefore, blame him,'" says Mangalmurti.
Informal verbal consults are inherently dangerous, he says, because the consultant is giving advice without knowing all the facts. The primary care physician can't divert malpractice responsibility without a formal, documented consultation, Mangalmurti explains, and the consultant faces the possibility of a court deciding a doctor/patient relationship was established even if he or she never saw the patient.
"The irony is that if you are just speaking very generally, you are fine. But the more information you get in an attempt to give good advice, the more likely it is that a court is going to find you are generating a relationship with the patient and exposing yourself to liability," Mangalmurti says.
If the consultant has any type of responsibility for the patient, then even an informal verbal conversation, such as an on-call cardiologist answering a general question from an emergency physician about a patient, is likely to be considered by the court as a formal consultation, adds Mangalmurti. "The warning sign that an informal consult is becoming formal from a legal perspective is that it moves from general medical advice to specific advice about a specific patient, including looking at actual labs or test results," Mangalmurti says. "If it smells like a formal consult, then you are better off just making it a formal consult and acting accordingly." Here are risk-reducing strategies:
• Consultants should be careful not to make recommendations on areas outside their expertise.
Document that a recommendation was made to address a particular question, advises Mangalmurti, and avoid making recommendations on other areas.
"You don't want to be held accountable for a decision being made that doesn't really deal with your specialty," he says.
For example, a cardiologist might be consulted to comment on an elevated troponin level on a critically ill intubated patient. Though ventilator management might have some effect on cardiac physiology, the consulting cardiologist should take care to not overstep his area of expertise by commenting too specifically on management of the ventilator, says Mangalmurti.
If the recommendation is based on limited information, the consultant should note this. "Certainly if there is some information that you think is essential that you don't have, you should document, 'I am making my decision in the absence of this information,'" says Mangalmurti.
• General practitioners should provide consultants with all necessary information.
Michael M. Wilson, MD, JD, a healthcare attorney with Michael M. Wilson & Associates in Washington, DC, recently handled a case of a patient who had a mechanical urinary sphincter implanted by a urologist, but the nephrologist did not take the time to review the chart and ordered a contraindicated catheterization.
The general physician did not warn the nephrologist of the presence of the mechanical urinary sphincter or review the nephrologist's catheterization order, because the general physician thought that these issues were determined by the nephrologist. "The patient had a catheterization pursuant to the nephrologist's order, and the urethra was permanently injured, rendering him incontinent," says Wilson.
If the consultant reviews the entire chart and discusses the recommendation with the general physician, it not only keeps the referring doctor out of trouble, but it also keeps the consultant out of trouble, since typically they would be jointly liable for any harm to the patient, says Wilson.
The most common reason for medical malpractice cases involving consultants is that the general physician fails to inform the specialist of the patient's particular problems, and the specialist fails to carefully review the chart, he says. When something goes wrong, such as administration of a contraindicated antibiotic, specialists typically claim they should have been warned by the general physician, while general physicians claim they relied on the specialist's recommendation.
"These cases would be more defensible for the general physician if he provided the specialist with all the necessary information, such as the entire chart, or specifically warned the specialist of the particular issues that the patient had," says Wilson.
Sources
For more information on liability risks involving consultations, contact:
- Sandeep Mangalmurti, MD, JD, Lecturer in Law and Fellow, University of Chicago Section of Cardiology. Phone: (773) 702-9494. Email: [email protected].
- Michael M. Wilson, MD, JD, Michael M. Wilson & Associates, Washington, DC. Phone: (202) 223-4488. Fax: (202) 280-1414. E-mail: [email protected].
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