“Medical errors are potentially a lot higher in curbside consultations because much is lost in translation,” Dr. Zwillich explains. “When a curbside is used as a substitute for the physician seeing the patient, it can result in an incorrect diagnosis and medical errors.”
Dr. Zwillich is concerned because a physician can give the best treatment advice, but if the underlying diagnosis is wrong patients can be harmed. Because curbsides are quick, one physician doesn’t know if the other physician is leaving out something critical or even if the underlying diagnosis is correct. “By taking a curbside consult, you are giving up your opportunity to make an alternative diagnosis,” Dr. Zwillich says.
When giving advice on a specific patient nothing beats a formal consultation in which the patient is seen and a complete history is taken, he says: “The best care is given at the bedside.”
Dr. Nagamine also fears the risk hospitalists take for a medical malpractice lawsuit. “My biggest concern is when hospitalists don’t recognize the risk they take on,” she says. “We shouldn’t take a curbside consult without knowing the risks.”
Traditionally, medical malpractice liability for curbside consultations has hinged on an established physician-patient relationship, generally limited to hospitalists seeing a patient. “Courts have been reluctant to extend liability to specialists consulted informally by the patient’s primary physician,” writes Kim Baker, JD, a healthcare attorney with Williams Kastner, in Seattle, Wash., in an analysis of court rulings.
However, courts are allowing suits to proceed against the consulting hospitalist, trying to decide whether a physician-patient relationship existed—and if so whether the [consulting] physician’s advice led to the alleged malpractice. Particularly relevant to hospitalists is the legal question of whether a pre-existing contract between the consulting physician and the hospital creates a physician-patient relationship with patients in that hospital. On this question courts have been mixed. In other cases, liability turned on whether the consultant physician went beyond giving general advice to participating in the patient’s care.
Courts are continually revising their rulings and may change the way they interpret a physician-patient relationship. Baker cautions that this may be a trend with curbside consults. She says trial attorneys are continually trying to find ways to bring more hospitalists into a suit. Baker sees a “discernible shift away from the longstanding policy that favors physician’s expectations over those of patients when determining whether a particular physician owed a duty of care to a particular patient.” She warns that hospitalists who engage in informal consults “may be at greater risk for medical malpractice liability.”
Can’t Stop Lawsuits
The reality of a litigious society is that even if you aren’t liable for malpractice you can still be sued. Attorneys routinely “paper the hospital,” naming in a suit everyone who came in contact with a patient or gave advice on his treatment, says Robin Diamond, MSN, JD, vice president of patient safety at The Doctors Company, Napa, Calif., a professional liability insurer of hospitalists and other hospitalists.
“Even if you have no responsibility, you still have to go through all the pain, expense, and heartache of getting yourself dismissed from the suit,” she explains. “What makes the curbside consultation easy and convenient for the consulting physician is what turns it into a legal nightmare for both of them.” Because the consult is on the run, the consulting physician may not give all the information that reveals the whole clinical picture.