Does anyone know of RadOnc malpractice cases resulting from "Okaying" other specialities' interventions? I very often see surgical notes saying something like "discussed with RadOnc, they agree with urgent craniotomy". It is obviously a risk for RadOnc, I'm just not sure of how much pushback is feasible and necessary. Thanks
Legal risk associated with rendering an informal opinion
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I think if a multi-disciplinary discussion is had about a patient, you as a rad onc are not going to be put on the stand for not knowing the patient's medical history that put them at high risk of being inoperable. Obviously if the document is fradulent (because they didn't actually discuss it with you) then shut that **** down ASAP. But I load the boat when there are potentially questionable decisions being made, and I think it's appropriate to repay that favor to the folks you work with on a daily basis.
If I think the patient needs an urgent craniotomy, I want NSG to do it for the benefit of the patient. I'm not thinking about the liability risk to me of NSG putting a line like that in the chart.
A much more problematic line would be me saying in my note (and I would never do this) "I highly recommend this patient to go for urgent craniotomy due to X, Y, Z, but neurosurgeons refuse to operate", or things where there is not concordance between specialties.
If I think the patient needs an urgent craniotomy, I want NSG to do it for the benefit of the patient. I'm not thinking about the liability risk to me of NSG putting a line like that in the chart.
A much more problematic line would be me saying in my note (and I would never do this) "I highly recommend this patient to go for urgent craniotomy due to X, Y, Z, but neurosurgeons refuse to operate", or things where there is not concordance between specialties.
True multidisciplinary opinion is only possible when everyone has examined the patient. So, if I do a consult on a patient that surgeons want to operate on badly, I usually frame written conclusion in a defensive, but collegial way. There are many options for brain mets.
My question is about more egregious abuse of a colleague's trust: a late night page or text saying "we are operating just FYI". Note says "discussed with RO'. If patient does poorly, is there malpractice for RadOnc?
My question is about more egregious abuse of a colleague's trust: a late night page or text saying "we are operating just FYI". Note says "discussed with RO'. If patient does poorly, is there malpractice for RadOnc?
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If such a lawsuit arises from a situation like seper describes, all parties would likely be included as part of a "shotgun" approach. However, I'm certain the RO would be dropped quickly in such a scenario.
The only situation that the RO MIGHT be liable is if:
1. They did a formal consult and examined/interviewed the patient
2. Documented it
3. Explicitly recommended the intervention that the patient is suing for
However, even if all three points were met it would be a stretch to include the RO. No competent Neurosurgeon is going to perform a craniotomy just because a non-Neurosurgeon "said so."
I've certainly been told by other specialties to "just irradiate" and I will absolutely push back if it is not indicated or too risky,
The only situation that the RO MIGHT be liable is if:
1. They did a formal consult and examined/interviewed the patient
2. Documented it
3. Explicitly recommended the intervention that the patient is suing for
However, even if all three points were met it would be a stretch to include the RO. No competent Neurosurgeon is going to perform a craniotomy just because a non-Neurosurgeon "said so."
I've certainly been told by other specialties to "just irradiate" and I will absolutely push back if it is not indicated or too risky,
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I mean if you strongly disagree that the patient does not need an urgent craniotomy then tell the neurosurgeon that.
We are allowed to have opinions and use them to (at times) disagree with our colleagues.
I just think worrying about you, as a RO, getting sued for a NSG complication is kinda silly. I mean if the surgery was not indicated in your opinion then tell the NSG that, and if he lies or is fradulent then you have your defense.
We are allowed to have opinions and use them to (at times) disagree with our colleagues.
I just think worrying about you, as a RO, getting sued for a NSG complication is kinda silly. I mean if the surgery was not indicated in your opinion then tell the NSG that, and if he lies or is fradulent then you have your defense.
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I was reading an article in the Wall Street Journal this weekend about the Indian Health Service in the US. In it they have a quote "Insurance actuaries say US doctors typically have one malpractice claim every 20 years or so. Surgeons and other high risk specialists have twice that rate. The IHS was willing to hire doctors with many more lawsuits in their past, in some cases more than 10 in less than a decade."
Based on these figures alone it would seems like having a malpractice case is a very rare once in a career event from most doctors and probably less so for rad oncs given our patient population. So I would doubt that someone else quoting you in their note would have any legitimate legal ramifications.
Based on these figures alone it would seems like having a malpractice case is a very rare once in a career event from most doctors and probably less so for rad oncs given our patient population. So I would doubt that someone else quoting you in their note would have any legitimate legal ramifications.
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I think you are in no jeopardy, for the same reason that urologists don't get sued for prostate brachytherapy-radiation oncologists do.
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Even for what seems like common sense above, I’ll just leave this here. There are now established risks for curbside consults.
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Really? Even if they help place the needles?
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Everything is a risk.
Do we really want to practice in a world where we can't pick up the phone and ask your buddy the med onc or neurosurgeon or CT surgeon to weigh in and they're refusing to render an opinion unless they see them in clinic? Good luck growing or keeping your practice when a neurosurgeon calls you about a possible SRS case or a CT surgeon or pulm calls and you say "Nah, I'll weigh in on this once I see the patient in clinic" to render a formal opinion. Of course tough cases may need an eyeball/consent, but "hey, can you look over my shoulder on management here..." type of things go on all the time.
I'll often get a small cell case with asymptomatic very small brain mets and the med onc will call me like 10 minutes before chemo infusion and say "Oh, BTW, this dude has small brain mets, I was just going to have you see him later because his thoracic disease is crazy huge and we're just going to start chemo." So of course it's fine to do chemo there first, but as a courtesy I look at the images and weigh in and make a formal consult with patient down the road.
If a neurosurgeon was proposing a craniotomy but wanted me to look at it first, I'd gladly oblige. If I think it's reasonable I say so. I may also jot a little note in the EMR to say it's reasonable. Reasonable does not mean "stamp of approval," it just means reasonable.
Do we really want to practice in a world where we can't pick up the phone and ask your buddy the med onc or neurosurgeon or CT surgeon to weigh in and they're refusing to render an opinion unless they see them in clinic? Good luck growing or keeping your practice when a neurosurgeon calls you about a possible SRS case or a CT surgeon or pulm calls and you say "Nah, I'll weigh in on this once I see the patient in clinic" to render a formal opinion. Of course tough cases may need an eyeball/consent, but "hey, can you look over my shoulder on management here..." type of things go on all the time.
I'll often get a small cell case with asymptomatic very small brain mets and the med onc will call me like 10 minutes before chemo infusion and say "Oh, BTW, this dude has small brain mets, I was just going to have you see him later because his thoracic disease is crazy huge and we're just going to start chemo." So of course it's fine to do chemo there first, but as a courtesy I look at the images and weigh in and make a formal consult with patient down the road.
If a neurosurgeon was proposing a craniotomy but wanted me to look at it first, I'd gladly oblige. If I think it's reasonable I say so. I may also jot a little note in the EMR to say it's reasonable. Reasonable does not mean "stamp of approval," it just means reasonable.
Surgeons want a stamp of approval and see your "okay" answer as such stamp. Why do they do it so often? There must be some sort of case law that they learn in residency.
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I have very rarely seen rad oncs be asked "is it OK if I take this patient to surgery". I'm not sure if my experience is the rare one or if yours is. Usually the rad onc is being TOLD that the patient is being taken to surgery, usually at the last minute.
Regardless, I think you are worrying far far too much about something that is very very unlikely to have any potential effect on your life and career.
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Yeah I'm with you on this. Most of the time it's me thinking "why didn't you ask me about this before surgery?" Not - "why are you asking me if you can take this patient to surgery?" I would actually welcome that.
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Yup. Sometimes I'll see a cord compression or brain met first in the hospital, but usually it's the other way around and usually I'm being notified that the pt isn't a good candidate for surgery for whatever reason
Thanks for input all... the only case I know went like this. RadOnc referred a patient with breast Ca to a surgeon for metastatectomy. Pre-op clearance showed coronary artery disease, and patient was further referred for CABG. Cardiac surgeon "FYI" the RadOnc before the operation. Patient died postop, and the original RadOnc was named a co-defendant in malpractice claim ("shotgun approach"). Initial efforts of the RadOnc to be excluded were not successful. I think case wound being settled in arbitration = permanent stain in RO record.
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I think the Rad Onc had a ****ty lawyer to not be dropped from the lawsuit if that is truly the whole story.
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Stop the fearmongering. Curbside consults are OK.
Read below (this is a transcript of Dr. Cotton's podcast episode by the same title). He lists all of the criteria for liability.
The War on the Curbside Consult
Podcast Script
Victor R. Cotton MD, Esquire August 8, 2019
Welcome to the Law & Medicine podcast. Today’s topic is the war on the curbside consult. Curbside consults, where physicians informally solicit one another’s opinion, are an integral part of patient care, and they are absolutely invaluable when formal consultation is unavailable or impractical. Unfortunately, the medical legal community views curbside consults as a sloppy and dangerous practice that carries unacceptable legal risk. And, for the past 20 years, they’ve warned us against curbside consults, encouraged us to avoid these interactions, and some malpractice insurers have gone as far as stating that curbsides are not appropriate in any situation.
In support of their position, the medical legal community has relied on a series of legal cases, none of which actually support what they say, but they now have two new cases, the first discussed in a Medscape article, and the other a Minnesota Supreme Court decision. The cases are said to make curbside consults even more dangerous. But, are the experts telling us the truth?
I first raised this question 10 years ago in a paper that was published in the American Journal of Cardiology. And what I said in that paper is the same thing I’m going to say today, and that is that our courts have repeatedly recognized the value of the curbside consult and consistently protected curbside consultants from liability. Unfortunately, my assessment doesn’t fit the risk management narrative. And, as a result, when someone discusses the legal risks of curbside consults, my paper is never mentioned, even though my paper is titled Legal Risks of Curbside Consults. I’ll admit that I’ve found this somewhat bothersome over the years. However, my longsuffering was eventually rewarded. A few months ago, the Minnesota Supreme Court decided a case titled Warren v Dinter, which involved an interaction that was arguably a curbside consult. And, in answering this question, the Minnesota Supreme Court issued a decision that
included a paragraph from my paper, and the Court even mentioned my name on page 15, which I believe gives my position some credibility.
And, here’s what you need to know.
Every court that has ever considered the issue has held that a physician who is consulted as part of a curbside consult has no liability. I’ll say that again. The physician who is consulted as part of a curbside consult has no liability. And no court has ever held otherwise. However, the protection applies only if the interaction is indeed a curbside consult.
And as a result, when it comes to curbside consults, the critical question is not whether curbside consultants have liability because it’s clear that they do not. The question is whether the interaction is actually a curbside. In order to answer that question, the courts have relied on 7 criteria. If you want an interaction to be a curbside consult and free from liability, you must meet all 7 of these criteria.
#1 – The interaction must informal. You cannot have been formally consulted and your opinion must be offered as a professional courtesy to a colleague.
#2 The interaction must occur between 2 physicians or 2 healthcare providers neither of who is subordinate to the other. If the person who consults you is someone that you supervise, such as a resident, a fellow or a nurse practitioner, that interaction is not a curbside because that person would be under your authority and you would therefore responsible for his or her actions.
#3 The patient in question cannot be your preexisting patient nor a patient of someone for who you are covering. If another physician calls to discuss a patient who you saw last week, that discussion is not a curbside because you already have a relationship with that patient. In addition, if you are covering for me and another physician calls about one of my patients, that interaction is also not a curbside because you’re covering my relationship, making that person your patient.
#4 The discussion does not pertain to patient in the ED with you being on call for the ED. There is a federal law, EMTALA, that creates an obligation for on call physicians. And, as a result, if you are on call for the ED and the ED calls about a patient, your discussion with the ED physician is not a curbside consult.
#5 The consult does not result in you having any interaction with the patient. #6 The consult does not result in the generation of a written report.
And, # 7. You do not receive any payment.
If you meet all 7 criteria, the interaction is a curbside consult for which you have no liability. In the words of the Kansas Supreme Court “A physician who gives an informal opinion at the request of the treating physician cannot be liable for malpractice.”
Now that sounds pretty good, but it gets even better. A Michigan appeals court refused to hold a curbside consultant liable even though he was consulted about the patient on multiple occasions, made specific recommendations, and reviewed the patient’s chart. So, with all that why wasn’t he liable? Because he met the 7 criteria, making the interaction a curbside consult, and a curbside consultant cannot be liable.
Now, you might be thinking. OK, Cotton, that sounds good, but the law could change tomorrow. No, it won’t because the language these courts are using is very strong.
An Illinois appeals court wrote, and I quote, “making curbside consultants liable would have a chilling effect upon the practice of medicine. It would stifle communication, education, and professional interaction all to the detriment of the patient.” So, that’s how our courts view curbside consults.
Unfortunately, the risk management community views them differently, much differently. And, they’ve got 2 new cases to advance their agenda.
The first was published in Medscape in July of 2019. The author does not provide a name or a citation for the case, which is significant because the law is determined by published opinion. The cases that I’ve quoted are published opinions from the Kansas Supreme Court, a Michigan appeals court, and an Illinois Appeals Court. But, that’s not what we have with this Medscape article. This is just an unnamed, unpublished case from somewhere. And, we have no way to verify whether it even happened.
But, in any event, the article is titled When does a Curbside Consult Becomes Patient Care. When does a Curbside Consult Becomes Patient Care.
And the answer is that a curbside consult never becomes patient care. There’s no question about that, but the author disagrees. And, in the first sentence he states:
If you look at the record, you’re involved. If you look at the medical record, you’re involved and you’re therefore liable. All you have to do is look at the record, which will come as news to the Michigan court which said that looking at the record was not enough.
So where does the author get this idea? Well, let’s look at the case. The patient presented to the ED with neurologic symptoms, and the ED doc spoke with the on call neurologist. So, we can stop right there and say that that conversation was not a curbside because the patient is in the ED and neurologist was on call, and that’s one of the 7 criteria. So, at that instant, because of EMTALA, the neurologist became legally obligated for the patient’s care.
The neurologist suggested getting an MRI, which was negative for stroke. The patient became hemodynamically unstable and was admitted to the ICU without ever being seen by the neurologist. It’s not clear what happened next, but the patient died and the family filed a lawsuit which included the neurologist, even though he never saw the patient and was never formally
consulted. Of course, none of that matters because he was roped in by the call from the ED. We already know that.
The author then writes: An issue in the litigation was the extent of the neurologist’s responsibility to the patient.
No. That’s not an issue, he was fully responsible from the time of the phone call.
The author continues:
Though he was on call, the neurologist did not consider his discussion with the ED as making him part of the patient's "care team."
It doesn’t matter what he thought. Federal Law says he’s responsible.
During discovery, the plaintiffs' attorney found that the neurologist had logged into the patient's EHR at the time of his call with the ED, and then again later to review the MRI. And, because his electronic fingerprint was in the record, the neurologist couldn’t say that he wasn’t involved, and he had to settle the case.
None of which makes any sense, but it doesn’t matter because he was already responsible. So, this case, assuming it’s even real, does not change the law with respect to curbside consults and viewing someone’s medical record does not make you liable for that person’s care. No court has ever held that it does. And, in fact, at least one court has specifically held otherwise. In addition, if what the author says here is correct, that looking at the chart makes you liable, then everyone from the coders in the billing department, to the quality improvement nurses, to the people who do audits for Medicare, to everyone who views a chest X-ray at morning report, is going to be sued for malpractice because they all looked at the chart. So, what the authors says here is nonsense and you should ignore it.
The second case is Warren v Dinter from the Minnesota Supreme Court. This is the case that mentions my paper and here’s what happened.
A nurse practitioner was practicing independently, which is permissible in Minnesota, and she was seeing patients in an office setting. And, because she’s independent, she’s not being supervised by a physician.
However, she did not have privileges to admit patients. If she wanted to admit someone, the institutional policy was that she had to call the hospitalist and he would do the admission.
So, the NP calls the hospitalist about a patient and says that he needs admission. The hospitalist listens to the story and says no I’m not going to admit him, he can be treated as an outpatient and here’s what you should do. The NP did as the hospitalist suggested and the patient died. The patient’s family sued the hospitalist for denying the admission and he defended himself saying that his conversation with the NP was just a curbside consult for which he cannot be liable.
In analyzing the situation, the Minnesota Supreme Court began by stating that this was not a curbside consult because the interaction was not informal. Remember the first criterion is that the interaction has to be informal, but the court noted that this was not the case because the NP did not call the physician to pick his brain in a collegial manner. On the contrary, she had already decided that admission was needed and called in accordance with institutional policy. And, the hospitalist declined to admit the patient. In the words of the court, he acted as a gatekeeper and made a decision to not open the gate. And, because the interaction was a formal one mandated by hospital policy, the hospitalist was not protected as a curbside consultant. And, I agree with that conclusion.
But, the most important thing I want you to see is that the legal question here was not whether curbside consultants should be liable but rather whether this was a curbside. Remember, that’s always the critical question. And, because it wasn’t a curbside, the hospitalist faced liability. But, that liability had nothing with being a curbside consultant because this wasn’t a curbside.
Unfortunately, that’s not how the medical legal community interpreted the case. And, over the past few months, here are some of the papers which have appeared:
An article on Kevin MD was titled
How a Minnesota Supreme Court decision could affect curbside consults
That’s great.
An article on the ASCO post was titled
“Curbside Consults: New Liability Risks to Avoid.”
And, not to be left out, the Minnesota Medical Society issued a Malpractice Alert that summarized the case in the following manner:
A hospitalist was sued for malpractice after he received a call from a nurse practitioner to discuss whether the NP’s patient should be admitted. The hospitalist relied upon the information provided to him by the NP and the two discussed whether hospitalization was appropriate. The patient was not admitted, subsequently passed away from an infection and the hospitalist was held liable.
So, what they’ve described sounds like a classic curbside consult. But, that’s only because they omitted some critical facts. They left out that the phone call was placed accordance with institutional policy, that the hospitalist was required to field this call, that the NP was trying to get the patient admitted, that going through the hospitalist was the required way of doing so, that the hospitalist was a gatekeeper who closed the gate, and that the court held that this was not a curbside consult. They conveniently left all of that out to make it sound like a curbside, which will discourage you from doing curbsides because they hate curbsides.
The piece goes on to say
This decision has the unfortunate effect of potentially increasing physicians’ liability following informal consultations.
And this is blatantly untrue. The court specifically said that this was not an informal consultation. It was a formal interaction in accordance with institutional policy and the court’s decision therefore has no impact on informal interactions such as curbside consults.
As I said in the beginning, the risk management community is at war with the curbside consult. They want to see curbside consults abolished. And, one of their methods is to present cases in a skewed manner, leaving out key facts, to mislead you into thinking that curbside consults are dangerous. And, while they are certainly entitled to their own opinion about curbside consults, they are not entitled to their own version of the facts.
Thanks for listening to me today.
Read below (this is a transcript of Dr. Cotton's podcast episode by the same title). He lists all of the criteria for liability.
The War on the Curbside Consult
Podcast Script
Victor R. Cotton MD, Esquire August 8, 2019
Welcome to the Law & Medicine podcast. Today’s topic is the war on the curbside consult. Curbside consults, where physicians informally solicit one another’s opinion, are an integral part of patient care, and they are absolutely invaluable when formal consultation is unavailable or impractical. Unfortunately, the medical legal community views curbside consults as a sloppy and dangerous practice that carries unacceptable legal risk. And, for the past 20 years, they’ve warned us against curbside consults, encouraged us to avoid these interactions, and some malpractice insurers have gone as far as stating that curbsides are not appropriate in any situation.
In support of their position, the medical legal community has relied on a series of legal cases, none of which actually support what they say, but they now have two new cases, the first discussed in a Medscape article, and the other a Minnesota Supreme Court decision. The cases are said to make curbside consults even more dangerous. But, are the experts telling us the truth?
I first raised this question 10 years ago in a paper that was published in the American Journal of Cardiology. And what I said in that paper is the same thing I’m going to say today, and that is that our courts have repeatedly recognized the value of the curbside consult and consistently protected curbside consultants from liability. Unfortunately, my assessment doesn’t fit the risk management narrative. And, as a result, when someone discusses the legal risks of curbside consults, my paper is never mentioned, even though my paper is titled Legal Risks of Curbside Consults. I’ll admit that I’ve found this somewhat bothersome over the years. However, my longsuffering was eventually rewarded. A few months ago, the Minnesota Supreme Court decided a case titled Warren v Dinter, which involved an interaction that was arguably a curbside consult. And, in answering this question, the Minnesota Supreme Court issued a decision that
included a paragraph from my paper, and the Court even mentioned my name on page 15, which I believe gives my position some credibility.
And, here’s what you need to know.
Every court that has ever considered the issue has held that a physician who is consulted as part of a curbside consult has no liability. I’ll say that again. The physician who is consulted as part of a curbside consult has no liability. And no court has ever held otherwise. However, the protection applies only if the interaction is indeed a curbside consult.
And as a result, when it comes to curbside consults, the critical question is not whether curbside consultants have liability because it’s clear that they do not. The question is whether the interaction is actually a curbside. In order to answer that question, the courts have relied on 7 criteria. If you want an interaction to be a curbside consult and free from liability, you must meet all 7 of these criteria.
#1 – The interaction must informal. You cannot have been formally consulted and your opinion must be offered as a professional courtesy to a colleague.
#2 The interaction must occur between 2 physicians or 2 healthcare providers neither of who is subordinate to the other. If the person who consults you is someone that you supervise, such as a resident, a fellow or a nurse practitioner, that interaction is not a curbside because that person would be under your authority and you would therefore responsible for his or her actions.
#3 The patient in question cannot be your preexisting patient nor a patient of someone for who you are covering. If another physician calls to discuss a patient who you saw last week, that discussion is not a curbside because you already have a relationship with that patient. In addition, if you are covering for me and another physician calls about one of my patients, that interaction is also not a curbside because you’re covering my relationship, making that person your patient.
#4 The discussion does not pertain to patient in the ED with you being on call for the ED. There is a federal law, EMTALA, that creates an obligation for on call physicians. And, as a result, if you are on call for the ED and the ED calls about a patient, your discussion with the ED physician is not a curbside consult.
#5 The consult does not result in you having any interaction with the patient. #6 The consult does not result in the generation of a written report.
And, # 7. You do not receive any payment.
If you meet all 7 criteria, the interaction is a curbside consult for which you have no liability. In the words of the Kansas Supreme Court “A physician who gives an informal opinion at the request of the treating physician cannot be liable for malpractice.”
Now that sounds pretty good, but it gets even better. A Michigan appeals court refused to hold a curbside consultant liable even though he was consulted about the patient on multiple occasions, made specific recommendations, and reviewed the patient’s chart. So, with all that why wasn’t he liable? Because he met the 7 criteria, making the interaction a curbside consult, and a curbside consultant cannot be liable.
Now, you might be thinking. OK, Cotton, that sounds good, but the law could change tomorrow. No, it won’t because the language these courts are using is very strong.
An Illinois appeals court wrote, and I quote, “making curbside consultants liable would have a chilling effect upon the practice of medicine. It would stifle communication, education, and professional interaction all to the detriment of the patient.” So, that’s how our courts view curbside consults.
Unfortunately, the risk management community views them differently, much differently. And, they’ve got 2 new cases to advance their agenda.
The first was published in Medscape in July of 2019. The author does not provide a name or a citation for the case, which is significant because the law is determined by published opinion. The cases that I’ve quoted are published opinions from the Kansas Supreme Court, a Michigan appeals court, and an Illinois Appeals Court. But, that’s not what we have with this Medscape article. This is just an unnamed, unpublished case from somewhere. And, we have no way to verify whether it even happened.
But, in any event, the article is titled When does a Curbside Consult Becomes Patient Care. When does a Curbside Consult Becomes Patient Care.
And the answer is that a curbside consult never becomes patient care. There’s no question about that, but the author disagrees. And, in the first sentence he states:
If you look at the record, you’re involved. If you look at the medical record, you’re involved and you’re therefore liable. All you have to do is look at the record, which will come as news to the Michigan court which said that looking at the record was not enough.
So where does the author get this idea? Well, let’s look at the case. The patient presented to the ED with neurologic symptoms, and the ED doc spoke with the on call neurologist. So, we can stop right there and say that that conversation was not a curbside because the patient is in the ED and neurologist was on call, and that’s one of the 7 criteria. So, at that instant, because of EMTALA, the neurologist became legally obligated for the patient’s care.
The neurologist suggested getting an MRI, which was negative for stroke. The patient became hemodynamically unstable and was admitted to the ICU without ever being seen by the neurologist. It’s not clear what happened next, but the patient died and the family filed a lawsuit which included the neurologist, even though he never saw the patient and was never formally
consulted. Of course, none of that matters because he was roped in by the call from the ED. We already know that.
The author then writes: An issue in the litigation was the extent of the neurologist’s responsibility to the patient.
No. That’s not an issue, he was fully responsible from the time of the phone call.
The author continues:
Though he was on call, the neurologist did not consider his discussion with the ED as making him part of the patient's "care team."
It doesn’t matter what he thought. Federal Law says he’s responsible.
During discovery, the plaintiffs' attorney found that the neurologist had logged into the patient's EHR at the time of his call with the ED, and then again later to review the MRI. And, because his electronic fingerprint was in the record, the neurologist couldn’t say that he wasn’t involved, and he had to settle the case.
None of which makes any sense, but it doesn’t matter because he was already responsible. So, this case, assuming it’s even real, does not change the law with respect to curbside consults and viewing someone’s medical record does not make you liable for that person’s care. No court has ever held that it does. And, in fact, at least one court has specifically held otherwise. In addition, if what the author says here is correct, that looking at the chart makes you liable, then everyone from the coders in the billing department, to the quality improvement nurses, to the people who do audits for Medicare, to everyone who views a chest X-ray at morning report, is going to be sued for malpractice because they all looked at the chart. So, what the authors says here is nonsense and you should ignore it.
The second case is Warren v Dinter from the Minnesota Supreme Court. This is the case that mentions my paper and here’s what happened.
A nurse practitioner was practicing independently, which is permissible in Minnesota, and she was seeing patients in an office setting. And, because she’s independent, she’s not being supervised by a physician.
However, she did not have privileges to admit patients. If she wanted to admit someone, the institutional policy was that she had to call the hospitalist and he would do the admission.
So, the NP calls the hospitalist about a patient and says that he needs admission. The hospitalist listens to the story and says no I’m not going to admit him, he can be treated as an outpatient and here’s what you should do. The NP did as the hospitalist suggested and the patient died. The patient’s family sued the hospitalist for denying the admission and he defended himself saying that his conversation with the NP was just a curbside consult for which he cannot be liable.
In analyzing the situation, the Minnesota Supreme Court began by stating that this was not a curbside consult because the interaction was not informal. Remember the first criterion is that the interaction has to be informal, but the court noted that this was not the case because the NP did not call the physician to pick his brain in a collegial manner. On the contrary, she had already decided that admission was needed and called in accordance with institutional policy. And, the hospitalist declined to admit the patient. In the words of the court, he acted as a gatekeeper and made a decision to not open the gate. And, because the interaction was a formal one mandated by hospital policy, the hospitalist was not protected as a curbside consultant. And, I agree with that conclusion.
But, the most important thing I want you to see is that the legal question here was not whether curbside consultants should be liable but rather whether this was a curbside. Remember, that’s always the critical question. And, because it wasn’t a curbside, the hospitalist faced liability. But, that liability had nothing with being a curbside consultant because this wasn’t a curbside.
Unfortunately, that’s not how the medical legal community interpreted the case. And, over the past few months, here are some of the papers which have appeared:
An article on Kevin MD was titled
How a Minnesota Supreme Court decision could affect curbside consults
That’s great.
An article on the ASCO post was titled
“Curbside Consults: New Liability Risks to Avoid.”
And, not to be left out, the Minnesota Medical Society issued a Malpractice Alert that summarized the case in the following manner:
A hospitalist was sued for malpractice after he received a call from a nurse practitioner to discuss whether the NP’s patient should be admitted. The hospitalist relied upon the information provided to him by the NP and the two discussed whether hospitalization was appropriate. The patient was not admitted, subsequently passed away from an infection and the hospitalist was held liable.
So, what they’ve described sounds like a classic curbside consult. But, that’s only because they omitted some critical facts. They left out that the phone call was placed accordance with institutional policy, that the hospitalist was required to field this call, that the NP was trying to get the patient admitted, that going through the hospitalist was the required way of doing so, that the hospitalist was a gatekeeper who closed the gate, and that the court held that this was not a curbside consult. They conveniently left all of that out to make it sound like a curbside, which will discourage you from doing curbsides because they hate curbsides.
The piece goes on to say
This decision has the unfortunate effect of potentially increasing physicians’ liability following informal consultations.
And this is blatantly untrue. The court specifically said that this was not an informal consultation. It was a formal interaction in accordance with institutional policy and the court’s decision therefore has no impact on informal interactions such as curbside consults.
As I said in the beginning, the risk management community is at war with the curbside consult. They want to see curbside consults abolished. And, one of their methods is to present cases in a skewed manner, leaving out key facts, to mislead you into thinking that curbside consults are dangerous. And, while they are certainly entitled to their own opinion about curbside consults, they are not entitled to their own version of the facts.
Thanks for listening to me today.
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I was told in med school that if you curbside someone leave their name off the chart. So that's what I do. If someone curbsided me I'd tell them the same--happy to see them then I'm happy with my name being in the chart.
Reading this thread, I guess the correct way is to record "curbside conversation" in your private notebook but not to write anything in the chart.
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