Law & Medicine Clinical Sidebar

Curbside consults, in which physicians informally solicit one another's opinions, are invaluable to the care of our patients and an integral part of our medical culture. Unfortunately, curbside consults have come under increasing pressure from the risk management community, where they are viewed as a sloppy and legally dangerous practice.

As a result, it is generally recommended that curbside consults should be kept brief and devoid of specifics, if they are conducted at all. While this approach works well for people who spend their day behind a desk at a law firm, the following examples demonstrate that it has some very disturbing consequences for anyone who is seriously ill.

An obstetrician is seeing a pregnant patient who has palpitations. The physician obtains an ECG, but cannot discern the rhythm. He faxes the ECG to a colleague, who is a cardiologist, and asks for his opinion. In accordance with the latest risk management recommendations, the cardiologist refuses to answer, even though the patient has a life-threatening rhythm disturbance.

A family physician in a rural community is having difficulty managing a patient's blood sugar. The patient has limited financial resources and is unable to travel to see a specialist. The family physician calls a diabetologist at a tertiary center and asks for his advice. In accordance with the latest risk management recommendations, the diabetologist provides only vague and non-specific advice and then says, "I won't tell you how much insulin to give this patient. But, if you take a few guesses, I'll tell you if you're getting hotter or colder."

A visiting professor is giving a lecture on the latest options for the management of colon cancer. A physician in the audience asks whether one of his patients is a candidate for the treatment being discussed. In accordance with the latest risk management recommendations, the visiting professor politely dodges the question and resumes his lecture.

Although each of the above scenarios represents a callous disregard for human life, the question is whether the behavior is legally justified, nonetheless. According to prevailing risk management theory, the behavior is not only justified, it is the preferred course of action.

Deeply troubled that anyone would encourage this type of behavior, I researched this issue and then authored a paper titled "Legal Risks of Curbside Consults," which was published in the July 1, 2010 edition of The American Journal of Cardiology[1]. My paper demonstrates that there is NO actual liability for a person who provides a curbside consult, and that the above scenarios therefore amount to nothing more than misguided violations of patient care.

This is not just my opinion. The "No liability" position has been repeatedly recognized by our courts. In a display of great insight, one appellate court described the potential impact of imposing liability on a curbside consultant by stating, "[It] would have a chilling effect upon practice of medicine. It would stifle communication, education and professional association, all to the detriment of the patient"[2].

The law with respect to curbside consults is very clear. It does not matter whether the curbside consultant offers advice that is comprehensive or superficial, vague or specific, right or wrong. There is no liability.

Most of the confusion as to this issue is rooted in misunderstanding as to what constitutes a curbside consult. As described in the AJC article, a curbside consult is an interaction which:

1. Is informal;

2. Occurs between two physicians (neither of whom is subordinate to the other);

3. Involves a consultant who does not have a preexisting doctor-patient relationship with the affected patient and who is not covering for someone who does;

4. Does not involve an on-call consultant and the care of a patient who is in the emergency room;

5. Does not involve any contact between the consultant and the patient;

6. Does not result in the generation of a written report; and,

7. For which no payment is received.

So long as ALL of these criteria are met, the interaction is a curbside consult, and it does not create any actual liability for the consultant. Accordingly, curbside consults should occur as often as needed and to whatever degree is necessary for proper patient care. It is unfortunate that anyone would ever recommend otherwise.

Although errant legal advice will regularly infringe on our ability to practice medicine, we can best protect our patients and ourselves by recognizing that any risk management recommendation which compromises patient care is automatically wrong. The curbside consult is just one example of this principle in action.

[1]. Cotton VR, Legal Risks of "Curbside" Consults, Am J Cardiol. 2010; 106(1):135-8. Epub 2010 May 13.

[2]. Reynolds v. Decatur Memorial Hospital, 277 Ill. App. 3d 80, 86 (1996).