While informal, “curbside” consultations are common occurrences in this era of increasing specialization and subspecialization, they are undertaken with some peril for unwary physicians. Curbside consultations can cloud the issue of when a physician-patient relationship is established at a time when courts have been moving toward a broader definition of such relationships. Careful and explicit communication during physician consultations can serve the goals of excellent patient care as well as decrease the risk of liability for those involved.
This case in which five physicians — the emergency physician, the psychiatrist, the primary care physician, the neurologist, and the neurosurgeon — were involved in a patient’s care demonstrates how a jury might view a not uncommon sequence of events.
A 28-year-old morbidly obese female presented to the ER with severe lower back pain radiating to her legs and leg numbness. An MRI showed a herniated disc at L3-4. The ER physician discussed the case with the on-call neurosurgeon who recommended bed rest for pain control; the neurosurgeon neither saw the patient nor was informed of the MRI.
The neurologist who had been treating the patient for more than a year saw her the next day. Based on his examination of the patient, the neurologist’s impression was chronic back and leg pain and a conversion disorder overlying her preexisting problem of chronic depression. The patient’s symptoms led the neurologist to doubt that the ruptured disc was the sole cause of patient’s problems. The neurologist ordered an expedited psychiatric consultation before considering whether surgery was warranted.
When the neurologist saw the patient again on the morning of the third day, the patient complained of back and buttock pain as well as bladder dysfunction. The neurologist discussed the patient’s condition with the primary care physician, who ordered both a neurosurgical and a psychiatric consultation. Although the PCP’s nurses called the neurosurgeon on the evening of the third day, the neurosurgeon once again was not informed of the MRI and did not see the patient. The neurosurgeon reportedly told the PCP’s nurses that the PCP should contact him directly and identify the reasons for requesting a neurosurgical consultation on a patient with conversion syndrome.
The psychiatric consultation done on the fourth day resulted in the following diagnoses: (a) major depression and probable conversion component; and (b) exogenous obesity, severe lower back problems and chronic pain syndrome. Neither the neurosurgeon nor the neurologist saw the patient that day.
The PCP contacted the neurosurgeon on the morning of the fifth day, and the neurosurgeon agreed to provide a consultation. The neurosurgeon saw the patient later in the day and, after reviewing the MRI, immediately took her to surgery to remove a large herniated disc fragment at L3-4.
Following the surgery, it was determined that the patient was suffering from cauda equina syndrome. The patient is unable to walk without crutches and suffers from permanent neurological deficits with bowel and bladder control.
The patient sued the neurologist, the neurosurgeon and the hospital. She alleged that the neurologist failed to timely diagnose cauda equina syndrome, particularly in light of the MRI. The patient also claimed that the neurosurgeon was negligent in refusing to see her as the ER physician requested on the day she presented to the ER and that the delay in conducting surgery prevented reversal of the neural dysfunction.
The hospital settled for $2.5 million and the neurologist settled for $1.5 million. The jury rendered a defense verdict for the neurosurgeon, finding that no physician-patient relationship existed between the neurosurgeon and the patient.
Legal Perspective: Michael Chabraja, JD
A threshold issue for the jury in this case was whether a physician-patient relationship existed in the context of informal consultations between treating physicians and specialty consultants. Medical malpractice liability traditionally has been predicated upon an established physician-patient relationship. This traditional approach focuses on the physicians’ expectations rather than those of the patients when determining whether a duty of care is owed. In the past, courts have been extremely reluctant to recognize a physician-patient relationship in the context of these informal consultations. The policy considerations typically advanced in support of this position are as follows:
- The treating physician has ultimate control over the patient’s care.
- To recognize a physician-patient relationship in this context would have a chilling effect on the free flow of information between medical professionals.
A number of courts recently have deviated from the traditional approach and in so doing have expanded the scope of consultant liability. This shift with respect to the question of duty reflects a movement away from policies that favor physicians’ expectations toward policies that favor the expectations of patients. These courts have utilized three principal approaches, each of which is fact specific.
The first approach involves a qualitative analysis of the nature of the consultant’s actions toward the patient. The courts that follow this approach seek to determine whether the nature of the consultation was “continuous and substantial” as opposed to “fleeting and informal.”
Under the second approach, some courts have considered whether a physician-patient relationship can be established by a preexisting contractual obligation between the consultant and the hospital. Factors that often determine outcome under this approach include the express terms of the contract and whether the consultant was being paid to be on call or was merely a volunteer.
A third approach utilized by courts focuses on the issue of foreseeable reliance. The key factor in determining whether a duty of care exists under this approach is whether by virtue of the consultant’s expertise in a particular area it was foreseeable that the patient’s treating physician would rely on his advice.
Although the majority of courts still adhere to the traditional approach, physicians who continue to engage in curbside consultations should be aware that the risk of liability is clearly greater than it was just 10 years ago.
Medical Perspective: Monica Wehby, MD
Providing informal, curbside consultations is a common practice for many physicians, particularly specialists. In these situations, a formal consultation seems unnecessary, as the referring doctor merely wants advice or reassurance. If it becomes apparent that a formal consultation is warranted from the discussion of the case, the neurosurgeon will then proceed with examination and treatment of the patient.
One also must be wary of unknowingly being named in the patient’s medical record. Many physicians will document “discussed with Dr. Neurosurgeon” in the chart, without informing the curbsided specialist. It is wise for the specialist to inform the referring doctor that he does not want his name to appear in the chart unless formally consulted on the patient because of the expanded concept of consultant liability.
In addition, although the issue apparently was not brought to bear in this case, regulations of the Emergency Medical Treatment and Labor Act state that the ER physician decides which specialist and in what time frame the patient is to be seen by an on-call physician. It is not the consultant’s prerogative to decide if and when to see a patient if requested to do so. Failure to provide the service is an EMTALA violation that may result in litigation.
Michael A. Chabraja, JD, is a partner with McGuireWoods LLP in Chicago, Ill.
Monica C. Wehby, MD, is a neurosurgeon with Microneurosurgical Consultants P.C. in Portland, Ore.
Suggestions? By exploring closed medical liability cases, Risk Management aims to help neurosurgeons identify and avoid areas of legal peril. If you would like to see a particular topic covered, please send your idea to Monica Wehby, MD, Risk Management editor, [email protected].