Thaddeus Mason Pope, JD, PhD
Like most clinicians, oncologists often informally consult their colleagues, both asking questions and seeking suggestions on how best to care for their patients.1,2 These informal or “curbside” consults (sometimes called “sidewalk,” “elevator,” or “hallway” consults) are valuable, because the free exchange of information and expertise among clinicians facilitates communication, education, and professional association.3,4 This collaboration benefits not only the health-care profession, but also the patients it serves.5
However, a new state supreme court opinion highlights two types of legal risk associated with curbside consults.6 First, in some states, even informally consulted clinicians may be liable for providing negligent advice. Although these clinicians have no treatment relationship with the patient, they may still be liable, when it is “reasonably foreseeable” that their advice could harm the patient. Second, informally consulted clinicians in other states must also be careful, because the boundary between formal and informal consults is blurry. Normally, these clinicians cannot be liable for negligent advice, because they have no treatment relationship with the patient. But they may inadvertently cross the line from informal to formal, thereby creating a treatment relationship and exposing themselves to liability.
Prevalence and Practice of Curbside Consults
Curbside consults are an integral part of medical culture. Most physicians request or make several of these types of consults each week, whether in person, by phone, e-mail, text, or even through patients’ electronic health records.1-3 Not only are curbside consults common, they are also valuable. Collaboration and joint brainstorming contribute to better quality health care.7
In some states, even informally consulted clinicians may be liable for providing negligent advice.— Thaddeus Mason Pope, JD, PhD
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However, the informal, quick, and accessible nature of curbside consults comes at a price. They often lack the same clinical detail as formal consults. Without a complete clinical picture, the informally consulted clinician’s advice may not be as informed or as carefully considered.1 Indeed, several studies show that the information provided in informal consults is usually inaccurate or incomplete.8,9 Consequently, most of the affected patients receive different management recommendations after a formal consult.
Although the benefits of informal consults outweigh their burdens, they create a significant risk of error, some of which may lead to adverse outcomes. Typically, this has been legally unproblematic, because the treating clinician has remained solely responsible for the patient’s safety.10,11 But there are two important situations under which the informally consulted clinician may be liable for negligent advice.
Warren v Dinter and the Foreseeability Test
In April 2019, the Minnesota Supreme Court ruled that a clinician can be liable for medical malpractice, even when that clinician has no treatment relationship with the patient.6 Instead, a clinician can be liable for negligent advice when it is “reasonably foreseeable” that a patient would be injured by that advice. This ruling has profound implications for clinicians both in Minnesota and in several other states that follow the same rule, including Arizona, Iowa, Oregon, and South Carolina.
In Warren v Dinter, the patient was evaluated by a nurse practitioner in the outpatient facility of the Essentia health-care system. The nurse practitioner determined that the patient probably had a serious infection and should be admitted to the hospital. Since the only nearby hospital in this rural area of Minnesota was in another health-care system, Fairview, the nurse practitioner followed standard procedure and called a hospitalist at the Fairview hospital.6
Curbside consults are for simple questions without much clinical detail. If you find yourself getting more involved in the case, offer a formal consult.— Thaddeus Mason Pope, JD, PhD
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It is important to note that this hospitalist never examined the patient, never had access to the patient’s medical record, and never billed for the consult. Based solely on the nurse practitioner’s description over the phone, the hospitalist did not recommend hospitalization. The nurse practitioner accepted this recommendation and sent the patient home. The patient died 3 days later of sepsis caused by an untreated staph infection.6
If the patient’s death were caused by the nurse practitioner’s negligence, then she and her employer are liable for malpractice. Indeed, they settled a separate lawsuit with the patient’s family.But the patient’s family also sued the hospitalist who offered the curbside consult. The trial court applied the traditional rule and granted summary judgment to the hospitalist, because he was not in a treatment relationship with the patient.
The Minnesota Supreme Court reversed the decision, holding that the existence of a treatment relationship is not a necessary element of a claim for medical malpractice. Instead, the court held that physicians owe a duty of care when it is “reasonably foreseeable” that a patient may be harmed by a breach of the standard of care. In short, the case is an important reminder that, in a minority of states, informally consulted clinicians can be liable for their negligent advice.12 The American Medical Association and other professional societies warn that this ruling will have “a chilling effect” on curbside consults “to the detriment of patients.”13 Indeed, some medical liability carriers have already offered new best practices for curbside consults that mitigate the risk of liability.14
Curbside Consults and the Treatment Relationship
Although only a handful of states follow the Minnesota foreseeability test, the new Minnesota Supreme Court decision highlights legal risks in other states. Generally, clinicians cannot be sued under any theory of malpractice (eg, abandonment, informed consent, negligent treatment) unless they have a treatment relationship with the patient. Because curbside consults do not create a treatment relationship, informally consulted clinicians have no medical malpractice duties or liability. Instead, the treating, patient-facing physician remains solely responsible.
In most states, liability hinges upon the existence of a treatment relationship. The existence of a treatment relationship, in turn, depends upon whether the consult was formal or informal. So, it is important to appreciate the difference. In a formal consult, the consulting clinician: (1) visits the patient; (2) reviews the chart; (3) participates directly in the care plan; (4) charts his or her assessment, plan, recommendations, and orders; and (5) bills for services performed.
Law and Ethics in Oncology explores the legal and ethical issues oncologists must be aware of in this era of precision medicine and changing health-care policy, both to protect patients’ rights and to safeguard against potential legal jeopardy.
In contrast, informal consults are more limited. To begin, the informally consulted clinician has only brief, simple, and nonpatient-specific information from the treating physician. Furthermore, he or she 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.15
A consult that includes all of these attributes is probably informal. However, missing just one attribute might be enough to make the consult formal and create a treatment relationship. Curbside consults are for simple questions without much clinical detail. If you find yourself getting more involved in the case, offer a formal consult. Even for true informal consults, clarify the nature of the consult and keep your own brief record of the exchange. ■
Dr. Pope is Director of the Health Law Institute and Professor of Law at the Mitchell Hamline School of Law in Saint Paul, Minnesota (www.thaddeuspope.com).
DISCLOSURE: Dr. Pope reported no conflicts of interest.
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6. Warren v Dinter, No. A17-0555, 2019 WL 1646469 (Minn 2019).
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12. Baker K: United States: A doctor’s legal duty—Erosion of the curbside consultant. Mondaq, November 2003. Available at www.mondaq.com/unitedstates/x/23193/Professional+Negligence/A+Doctors+Legal+DutyErosion+of+the+Curbside+Consultant. Accessed May 30, 2019.
13. Brief of Amicus Curiae Minnesota Hospital Association, Minnesota Medical Association, and American Medical Association: Warren v Dinter, No. A17-0555 (Minn June 22, 2018).
14. Minnesota Medical Association, COPIC: Medical malpractice alert. May 2019. Available at www.mnmed.org/MMA/media/Hidden-Documents/MedicalMalpracticeAlert.pdf. Accessed May 22, 2019.
15. Hill v Kokosky, 463 N.W.2d 265 (Mich 1990).
Editor’s Note: The Law and Ethics in Oncology column is meant to provide general information about legal topics, not legal advice. The law is complex, varying from state to state, and each factual situation is different. Readers are advised to seek advice from their own attorney.
Disclaimer: This commentary represents the views of the author and may not necessarily reflect the views of ASCO or The ASCO Post.