Understanding Potential Medical Malpractice Liability Involving “Curbside Consultations”

Dr. Stephen J. Gluckman is a medical director at Penn Global Medicine and a professor of medicine at the Hospital of the University of Pennsylvania. Gluckman recently made a presentation at the American College of Physicians Internal Medicine Meeting. He discussed what is referred to as “curbside consultations.” These are informal conversations associated with patient care that may be educational. He says that these exchanges are “well-accepted when used appropriately.” Gluckman emphasizes that when physicians engage in these discussions, they should weigh the benefits and possible risks.

Informal Consultation

Gluckman says that curbside consultations are best for addressing general or “generic” questions regarding medical topics. Other names for these informal consultations include “elevator consults” or “hallway consults.” They are generally considered as being an accepted practice. The physicians involved are largely consulting with their colleagues in these interactions. These interactions could be considered as an informal consultation. The colleague is not paid any consulting fee.

Liability Risk

Dr. Gluckman says that participants should be cautious because these discussions involve “second-hand information.” He explained that there is a very small possibility that these interactions could have legal ramifications. Courts have found that liability associated with medical malpractice must involve a relationship between a doctor and a patient. These are discussions that may involve a patient's care; however, they are regarded as being only among colleagues.

Criteria for Curbside Consultation

What are the elements of a curbside consultation?

• They are informal in nature
• Occur between two or more physicians in a consultative manner
• The “consultant” physician does not have a current relationship with the patient being discussed
• The “consultant” physician is not acting as an “on-call” consultant or caring for this particular patient in the emergency room
• No monetary exchange (fees) occurs
• No formal report is created summarizing the interaction specifically
• Primary care physicians are the most likely to pursue these interactions to gain information from a specialist

Limited Risk

Medical malpractice liability stems from a healthcare professional's failure to provide care that meets the acceptable standards or level of care within a given medical profession. Some physicians may wonder what (if any) risk they are taking when participating in these consultations. Realistically, any professional liability is very unlikely. There is not an ability to prove the existence of a “therapeutic” relationship in these exchanges of information.

It is estimated that primary care physicians initiate these discussions roughly 3.2 times per week during their career. Physicians who practice in subspecialties report being approached in this manner nearly four times per week. There is some question regarding how exchanging text messages in an informal manner could heighten any potential risk. One common technique that the “consultant” physician may want to employ is to preface their advice with a statement. This may include something such as “I can offer some general advice…”