Before we start, some fast advice: Curbside consultations have been known to catapult well-meaning doctors into malpractice litigation. If you are embroiled in a case specific to a curbside consultation (or believe you are at risk), schedule a free consultation with our Founder and CEO, Jeff Segal, MD, JD, to learn how we can help protect you.

“No good deed goes unpunished.” In the medico-legal world, this phrase is gospel. And nowhere is it more applicable than to a pair of circumstances we’ve christened “the Shortcut Cousins.” What are we talking about? Curbside consultations and casual care. What’s a curbside consultation? What’s casual care? Let’s answer those questions with a few examples. Have you ever been asked to diagnose a health problem by someone who is not actually your patient? Have you ever been asked to supply “advice” to a family member? Has a colleague ever pulled you aside and asked for your opinion about a case? If you have participated in such events, you’ve engaged in both casual care and curbside consults.

Such instances are inevitable. Friends and family will attempt to capitalize on your knowledge and expertise. Not because they want a free lunch, but because they trust you. (Well, they may also want a free lunch.) And your colleagues will discuss cases with you – and ask for your input – because they are doctors. The work fascinates them, and it likely fascinates you, too. And it should be said: These brief and informal exchanges of information can benefit both doctors and patients.

Yet – we would not be discussing these “shortcuts” if doctors weren’t getting burned by them. Here’s a fact: Doctors who engage in casual care and curbside consults create risk. Why? If certain precautions are not taken, a seemingly benign observation or suggestion can propel malpractice litigation. There are ways to engage in both safely, but even if a doctor abides these best practices, the risk is never zero.

Because there is no way to go your entire career without participating in either, it is important to understand best practices. This piece represents the first of a two-part series. This piece will address risks specific to “curbside consultations” – i.e., informally collaborating with another doctor. The follow-up piece will address risks specific to casual care – i.e., informally consulting with somebody (family, neighbor, friend) with whom you have no formal doctor-patient relationship.

The best practices outlined will teach you how to increase the likelihood that your “good deed” will indeed go unpunished. And if you are already embroiled in a case specific to casual care or a curbside consultation (or any other medico-legal issue), schedule a free consultation with our Founder and CEO, Jeff Segal, MD, JD.

We open with curbside consults.

When a doctor gets burned as a result of a curbside consultation, it is often because the consultation was not a true “curbside” consultation. Something happened (often without the doctor’s realization or consent) that established a formal relationship with the affected patient.

True “curbsiding” is a quick answer to a limited question. It must meet ALL of the following conditions…

A curbside consult must be informal.

A curbside consult must occur between two physicians of “equal standing”; neither doctor can be subordinate to the other. You cannot “curbside” with a resident.

You cannot have a pre-existing doctor-patient relationship with the patient affected by the consultation; in addition, you cannot “fill in” for another doctor who DOES have an established doctor-patient relationship with said patient.

A curbside consult cannot involve an “on-call” consultation specific to a patient who is in the emergency room; any advice supplied will affect the patient directly…

A curbside consult does not involve contact between the consultant and the patient…

A curbside consult does not result in the creation of a written report…

A curbside consult must be free; no payment can be rendered in exchange for the consultation…

Summarized, a curbside consult aids your colleague, not your colleague’s patient. And because you are aiding your colleague, a medical negligence case cannot be easily propelled against you. Why? In this scenario, you never assumed responsibility for the patient’s care. Let’s put some substance to this idea with a real case from Illinois.

A child was admitted to the hospital after suffering a hard fall. The pediatrician discussed treatment with a neurosurgeon over the phone. The neurosurgeon offered to see the child – but ultimately was not requested to do so. The child was rendered paralyzed as a result of the injury. In the malpractice suit that followed, the neurosurgeon was dismissed. Why? The appellate court opined that because the neurosurgeon had not been asked to provide medical services, he could not be held liable for supplying an informal opinion.

The big takeaway – courts generally perceive collaboration between doctors as something that benefits everyone. Therefore, they are hesitant to take any action that may discourage doctors from doing so in the future. Once sued, twice shy. But as we’ve already mentioned, doctors can still get burned. What gives?

If an outsider’s opinion penetrates deeply into the patient’s care, that doctor can still be held responsible for an unhappy ending. If you suspect your colleague is fishing for instructions instead of a coarse opinion, formalize the conversation – especially if a colleague in the ER has elected to “phone a friend.” Let’s color this with a real-world example of a doctor who got burned.

A NY cardiologist was contacted by an ER doctor treating a patient suffering from chest pain. In addition to chest pain, the ER doctor reported the patient’s cardiac enzymes were elevated. The cardiologist told the ER doctor he didn’t think the symptoms suggested an emergent problem. The patient was soon released – only to suffer an MI a few hours later at home. In this case, the cardiologist was not dismissed. Why? The court opined that in this case, the doctor-patient relationship was implied.

The key difference: The cardiologist injected himself into the patient’s care and offered advice he knew the ER doctor would follow. The ER doctor was not looking for advice – he wanted instructions.

You want to be a colleague. You don’t want to be an instruction booklet – unless, of course, you come with tiny print and are trilingual.

Curbside consults become legally onerous when a professional unknown to the patient starts influencing his healthcare outcomes.

The doctor riding curbside may not have met the patient whom he is helping. Taken a step further, the patient may not even know his own doctor is seeking outside help.

The common denominator: Any situation (formal or informal) that leaves the patient in the dark inherently creates risk.

That said, the Kansas Supreme Court offers some comforting words: Doctors “cannot be liable for medical malpractice” if they “merely consult with a treating physician and [do] nothing more.” We saw evidence of this in the Illinois case.

So, how are doctors unconnected to a colleague’s bad outcome dragooned into litigation? The case with the ER physician showcases a specific example, but there are general rules you should follow.

If your colleague names you on the chart, you will be held accountable for any bad outcomes or perceived acts of negligence.

If the informally consulting doctor has a supervisory role over the questioning doctor, the supervising doctor will take the hit. We call this the “captain of the ship” doctrine. If you train residents, you must assume all guidance you supply will be viewed by the courts as indicative of a full relationship with the patient. There are no curbside consultations with residents.

If the informally consulting doctor is on-call to supply advice (or cover for another doctor), you should assume even a brief phone conversation will establish a relationship with the patient.

Curbsiding is low risk – so long as you keep both feet on the “curb.” And just like in the real world, the doctor assumes the most risk when he dismounts the curb and starts walking down the main road – i.e., actively participating in the patient’s care. The best practices defined below will help you keep both feet safely on the curb.

Curbsiding is best reserved for basic questions. If an answer requires consulting a chart or reading comprehensive studies, formalize the conversation.

Curbsiding is best reserved for general comments. The more you are drawn into the specifics unique to a given case, the more risk you assume.

Keep it short. It is natural to enjoy discussion with your colleagues, but long, drawn-out conversations are high-risk.

If the matter remains informal, remind the questioner not to name you in the chart. And if they insist, take that as a token that the conversation must be formalized.

If your colleague returns multiple times with questions about the same patient, offer a formal consultation as opposed to more informal discussions.

With all of this on the table – should you document the curbside consultation? It’s a double-edged sword. If your colleague has not named you in the chart, you don’t want to create risk by inserting yourself into the case by naming yourself. However, in the event of a bad outcome (litigation), you’ll want your own words on the record, not your colleague’s interpretation.

Doctors are generally helpful people. We want to take care of as many patients as reasonably possible. If another human approaches us and either a) needs help or b) appears to need help, we often engage. The bottom line: Can a doctor be sued for a curbside consultation? Yes, it is possible under certain circumstances. Is that fair? It’s debatable. But what’s fair does not matter. What matters is whether you understand how to collaborate with colleagues without putting yourself at risk.

Our advice? Don’t overdo it. Curbside consultations are an integral part of medicine. You can’t avoid them. And you shouldn’t hide from them. But you must exercise caution when participating. If the conversation evolves into something nuanced, formalize it.

And if you are already embroiled in a case specific to casual care (or any other medico-legal threat), schedule a free consultation with our Founder and CEO, Jeff Segal, MD, JD.

Medical Justice is equipped to defend your practice from a bevy of other medico-legal issues. We’ve been protecting doctors from medico-legal threats since 2001. We’ve seen it all.

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Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.