As a physician, you know the curbside consultation well. From the beginning of medical practice, physicians have asked their colleagues for quick answers to limited questions on patient care. In the past, this often occurred in the hallways of hospitals or some quiet corner. These informal and usually rushed sidebars were based on limited information, and no money changed hands.
Like much of medical practice, curbsides have also gone digital, taking place over video streams, text, email, and in EMR notes. What was once simpler is now complex.
Furthermore, curbside consults can be fraught with legal concerns in certain instances. Let’s take a closer look at the curbside consult and how to minimize risk.
Defining the curbside consult
According to the risk mitigation and reputation management firm Medical Justice, “A curbside consult aids your colleague, not your colleague’s patient. And because you are aiding your colleague, a medical negligence case cannot be easily propelled against you. Why? In this scenario, you never assumed responsibility for the patient’s care.”
Here is how “true” curbside consult is defined:
The nature of it is informal.
It happens between two physicians of equal standing (in other words, you can’t curbside a resident if you’re an attending).
There is no pre-existing relationship between the “curbsided” physician and the patient.
It cannot involve an on-call consultation regarding a patient being seen in the emergency department, as this directly affects patient management.
It does not involve contact between the curbsided physician and the patient.
No written report is created.
It must be free.
Curbsiding is usually low-risk. But, the practice can become fraught with litigation when a private conversation between doctors starts to influence a patient's healthcare outcomes, such as management plans. If a patient doesn’t know the consultant, but the consultant is dictating orders to their doctor, then the patient is in the dark, and malpractice may ensue.
Some states have different legal interpretations and definitions of curbsiding. The Supreme Court of Kansas, for instance, affirms that physicians are not liable for medical malpractice if they merely consult with a physician but do no more.
In a recent article published in Clinical Orthopaedics and Related Research, authors examined a malpractice case involving curbside consulting in Minnesota. They concluded that based on court decisions in the state, a physician can be held accountable for medical recommendations even if they involve a patient outside of their care. The standard revolves around whether harm resulted based on the physician’s suggestion and whether this harm was foreseeable—not whether a relationship existed.
“In an era when medical information is conveyed by telephone, text message, telemedicine, and other information aids, without actual patient interaction, physicians should realize that their recommendations may be judged by a new standard, that of reasonable foreseeability of harm,” the authors wrote. “Whether this standard will be adopted by other jurisdictions remains to be seen. But at least in Minnesota, the prudent course of physician action may be to examine the patient, or refer to an emergency room, if a serious, life-threatening condition cannot be excluded during a telephone consultation.”
Outside of Minnesota, the authors caution that communications with colleagues and other care providers may affect the care of patients with whom doctors have no relationship, creating liability risk.
One special case of risk involves curbsiding in different legal jurisdictions, or across state lines, according to The Doctor’s Company, which is a physician-owned medical malpractice insurer. In these cases, professional liability insurance does not usually cover a physician for practice in a state where they are not licensed.
According to their website, “It does not matter if the curbside consultation is electronic or face-to-face; the issues with informal consultations remain the same. However, the fact that an email, text, or other electronic format allows physicians who are miles—or states—apart to communicate can also lead to other issues, such as privileging, credentialing, and physician licensure in the state where the patient resides.”
Guidance on curbsiding
There are certain steps that physicians can take to limit legal fallout from curbsiding colleagues, according to a variety of sources.
Questions should be for the general education of the asking physician and not specific to any patient.
The requesting physician should not ask to confirm a diagnosis.
The questions are straightforward and require only brief and nonspecific answers.
No review of records is required.
No questions about the ordering of specific tests or studies are posed.
Ask the requesting physician to avoid naming you in the chart.
If the requesting physician returns several times to curbside, request a formal consultation with the patient.
Everyone needs help from time to time. Curbsiding is a practice that, when performed properly, can facilitate patient care. When practiced improperly, however, it can harm the patient and invite litigation. It’s best to approach the practice in a measured manner.