One of the most common inquiries we receive from physicians and healthcare professionals regarding DocSide pertains to liability. Over the last two decades, e-Consults, more recently defined as interprofessional consultations by the AMA and CMS, have demonstrated their ability to enhance equitable access to specialty expertise, optimize care, lower costs, and promote cross-learning and collegiality among healthcare professionals. However, despite their value, most healthcare professionals, hospitals, and health systems have failed to adopt these services as part of their care delivery models. Instead, healthcare professionals continue to frequently engage in informal peer-to-peer consultations, aka “curbsides”, that are typically conducted thorough verbal-only communication, rarely documented, and associated with liability risks that are both ambiguous and misunderstood. This article aims to provide a brief overview of the liability associated with these services and to encourage healthcare professionals to embrace interprofessional consultations as a safer way to collaborate about patients while generating additional revenue and minimizing liability exposure.
General Liability
As clinicians, we often possess a limited understanding of general liability risks and harbor significant fears of malpractice litigation. To fully grasp our professional liability risks, we must first establish a foundational understanding of common-law liability. We all share a duty to avoid negligently injuring others, a duty that does not necessitate any pre-existing relationship with those who may be harmed as a result of our negligence. This contrasts with our professional liability, where our duty of care is confined to situations in which a consensual professional relationship exists between us and a patient. The nuances of what constitutes a consensual professional relationship depend on various factors.
Historical Precedent and Misunderstanding
There are several misconceptions regarding the liability risks tied to curbsides. While these interactions between a treating clinician and a consultant usually lack the establishment of a typical patient-physician relationship, the consultant often unknowingly maintains a duty of care for the patient. Many clinicians are unaware that when they are on call for a hospital or any healthcare entity, even for other providers within their practice, they have a duty of care to all patients who may require their services, regardless of whether they have personally seen them. A similar duty of care arises in academic medicine when supervising other physicians or healthcare professionals in training. The judicial system has favored healthcare professionals in the absence of a duty of care; however, the consequential duty of care created in these scenarios carries a risk of liability akin to that of more formal patient-physician relationships.
Harsh Realities and Recent Legal Developments
Despite the well-established safety challenges presented by verbal communication between healthcare professionals, such is by far the most common means of conducting curbsides. Consultants rarely document curbsides, while treating clinicians commonly reference curbside recommendations in their records and frequently name the consultant specifically. Given that documentation is the cornerstone of all malpractice litigation, a curbside lacking any documentation from the consultant creates unnecessary liability risks for everyone. In the event of a claim involving a curbside consultation, the consultant’s defense often relies on the treating clinician’s notes or the consultant’s general approach to similar clinical situations, neither scenario being ideal. Furthermore, a recent ruling by the Minnesota Supreme Court, Warren v. Dinter, extended liability to consultants when it is “reasonably foreseeable” that a patient could be harmed by their advice to a treating clinician, even in the absence of a duty of care. This means that a consultant may be held liable for a curbside consultation if their recommendations lead the treating physician to forgo their independent professional judgment. It remains to be seen how other states might follow this precedent.
A Better Alternative
Potential liability risks associated with curbsides should serve to encourage healthcare professionals to always document their clinical collaborations. With both public and private insurers now offering reimbursement for interprofessional consultations, which are basically documented curbsides, clinicians now have a financial incentive to document these provider-to-provider interactions and, in doing so, mitigate associated liability concerns.
Consider a few questions: Why do you continue to offer undocumented, verbal curbside consultations for free if they expose you to unnecessary liability? If there were an affordable, turnkey solution for conducting interprofessional consultations, effortlessly documenting your recommendations, and capturing billable charges, why wouldn’t you start using it now? If you answered as most would, DocSide is the solution for you. For just $9.99 a month, you can access a growing, HIPAA-secure e-Consult Ecosystem™ where you and your colleagues can engage in interprofessional consultations about unique patients. Think about it: for less than the price of two cups of your favorite coffee each month, DocSide not only provides a way to document and capture charges for work you are already doing but also equips you with all the information needed to submit claims for reimbursement, with some private insurers offering upwards of $100 per interprofessional consult.
So, with all the above in mind, we invite you to join DocSide today to be recognized for your value while minimizing your liability!
And, if you still aren’t convinced, I encourage you to take some time to learn more about the liability risks of undocumented, informal curbsides using the below references.
Curbside Consults in Clinical Medicine: Empirical and Liability Challenges
Curbside Consultations: Patient Safety and Legal Risks
