Curbside consult or formal medical consultation?

By Megan La Suer, JD, MHA, and Rob Portman, JD, MPP, December 1, 2020

Every month, DermWorld covers legal issues in “Legally Speaking.” This month’s authors are health care attorneys with Powers Pyles Sutter & Verville in Washington, D.C. Portman is also general counsel for the AAD and AADA.

Introduction

Outside of certain emergency situations, physicians generally do not have an obligation to treat individuals if there is no prior or existing physician-patient relationship, and the physician does not intend to form one. However, the Minnesota Supreme Court recently issued a decision in Warren v. Dinter, finding that a patient could still bring a malpractice claim against a physician, even if there is no physician-patient relationship and the physician never actually examined or treated the patient, as long as it was reasonably foreseeable that the physician’s lack of due care could harm a particular patient.

Although this ruling will have the greatest implications for health care professionals licensed and practicing in Minnesota, it is important for all medical professionals to be aware of this issue and the potential precedent that it could set in other states. This article will provide an overview of the physician-patient relationship, the implications the Minnesota Supreme Court’s decision could have for medical malpractice liability, and best practices to avoid inadvertently forming a physician-patient relationship or other duty of care in consultation, screening, and other situations.

How is the physician-patient relationship normally formed?

A physician normally does not have a duty of care, including the duty to treat, with respect to a patient unless the physician has formed a physician-patient relationship with the patient. The physician-patient relationship is contractual in nature and is the central focus of most medical-ethics questions. Therefore, it is important to understand when and how such a relationship is formed.

The formation question was first addressed in U.S. courts in 1901. In Hurley v Eddingfield, the court discussed the obligations that a physician must treat individuals prior to a formal relationship being established. Although the physician refused to provide care to the patient and the patient eventually died, the court held that a physician’s medical license does not impose the duty to treat every patient, but rather the physician is still free “to practice at all or on other terms that he may choose to accept.” The “no-duty” rule is still considered to be good law and is also reflected in various professional medical ethics codes.

Even though a physician does not always have a duty to provide care, a common practice among all medical professionals is to engage in informal communications with their colleagues to exchange information or advice about patient care. Informal communications, often referred to as “curbside consultations,” do not generally create a relationship between the consulting physician and the patient, shielding the physician from potential medical malpractice liability. However, the recent decision in Warren v. Dinter shows that the line between a curbside consultation and a formal medical consultation or decision can easily become blurred. As a result, the case potentially expands the risk of medical malpractice liability for seemingly informal consultations and could have serious implications for the way physicians communicate and collaborate when providing care.

What exactly did the Warren v. Dinter court decide?

Warren v. Dinter stemmed from an interaction between health care professionals from two Minnesota health systems. The patient, Ms. Susan Warren presented to a health clinic in Hibbing, Minnesota, complaining of abdominal pain, fever, and chills, and was treated by a nurse practitioner, Sherry Simon. After a series of tests were performed, Ms. Simon called Dr. Richard Dinter, a hospitalist at Fairview Range Medical Center (in a different health care system), to try and have Ms. Warren admitted for more intensive treatment. After exchanging information over the phone regarding Ms. Warren’s test results and condition, Nurse Practitioner Simon testified that Dr. Dinter told her that Ms. Warren did not require hospitalization. Ms. Warren was subsequently prescribed medications and sent home. Ms. Warren died in her home three days later, with the official cause of death ruled as sepsis caused by an untreated staph infection. Ms. Warren’s son sued Dr. Dinter alleging that Dr. Dinter was “professionally negligent in the care and treatment,” including in advising Nurse Practitioner Simon that Ms. Warren did not require hospitalization.”

Significantly, Dr. Dinter claimed that he was just providing an informal opinion (which the defendants referred to as a “curbside consultation”) to Nurse Practitioner Simon about whether Ms. Warren’s condition warranted hospitalization and that he responded to Ms. Simon’s call as a “professional courtesy.” Nurse Practitioner Simon testified that she specifically requested that Ms. Warren be admitted to Fairview Range Medical Center. However, because this case presented to the court through a motion for summary judgment by Dr. Dinter and Fairview Regional Medical Center, as a matter of procedure the court was required to view the facts in the light most favorable to the plaintiff and therefore accepted the plaintiff’s position that Dr. Dinter provided a formal medical decision rather than an informal “curbside” consultation.

In most states, a medical malpractice claim is dependent on there being an express physician-patient relationship. In Minnesota, however, when there is no express physician-patient relationship, courts typically follow the traditional inquiry of whether a tort duty has been created by foreseeability of harm. Stated differently, a physician’s legal duty to provide care depends on whether it is reasonably foreseeable that a patient would be injured if medical advice is negligently given. In Warren, the lower courts found that Dr. Dinter had no duty to Ms. Warren because he had no physician-patient relationship with her. However, the Minnesota Supreme Court disagreed, holding that, based on the facts presented and its past precedents, it could reasonably be inferred that Dr. Dinter must have known, or should have known, that a negligent decision not to admit Ms. Warren would be relied on and could harm her. Therefore, the court found that Dr. Dinter had a duty of care with respect to Ms. Warren even though he had not established a physician-patient relationship with her.

In reaching this conclusion, the court considered several factors, including Dr. Dinter’s specialty as a hospitalist and the nurse practitioner’s inability to admit Ms. Warren to the hospital on her own. Additionally, the court concluded that because Dr. Dinter and the nurse practitioner did not have a pre-existing professional relationship and that the nurse practitioner was required by protocol to contact Dr. Dinter, their interaction was more than just a “professional courtesy” between colleagues. Viewing the facts most favorably to the plaintiff, the court found that this was more than a simple curbside consult and remanded the case back to the trial court in order to determine whether or not Dr. Dinter breached the standard of care for a hospitalist when deciding to not admit Ms. Warren. The court emphasized that its decision “should not be misinterpreted as being about informal advice from one medical professional to another.” Rather the case is about a “formal medical decision…made by a hospital employee pursuant to hospital protocol.”

Nevertheless, this case demonstrates that reasonable people can disagree about whether a communication is a formal request for a medical decision/advice versus an informal consultation. Consequently, the holding in Warren could have a "chilling" effect on communications and collaboration between health care professionals.

As stated above, only a small number of states have applied the same foreseeability test as Minnesota. However, the impact of this decision could potentially set a new precedent for physician liability when engaging in consultations with colleagues. Therefore, it is important for all health care professionals to understand the threshold regarding formation of a physician-patient relationship, and how to respond to colleagues when asked for an informal consult to ensure they are not somehow converted into a formal consultation.

How can physicians avoid liability for informal consultations?

Below are some recommendations that health care professionals can follow when consulted by a colleague to ensure the conversation remains informal and a physician-patient relationship is not formed, or the physician is not otherwise deemed to have a duty to the patient about which the consultation is focused. Bear in mind, however, that these recommendations assume you intend the consultation to be an informal, professional courtesy and that you are not playing a formal role in the medical decision-making process.

• Keep informal “curbside” consultations brief and general. Avoid getting sucked into details. If the conversation becomes too fact-specific, recommend a formal consultation.

• Do not review the patient’s medical record, have direct communication with, or examine the patient.

• Provide informal advice only within your scope of practice and which you have adequate and competent information to support your medical conclusions. Additionally, assume that non-dermatologist physicians and health professionals requesting an informal consultation will rely on your advice.

• Document formal consultations that are intended to direct patient care.

• Do not charge for the informal consultation.

Does the Minnesota case have any implications for dermatologists performing free skin cancer screenings?

Dermatologists performing skin cancer screenings, particularly through the American Academy of Dermatology’s SPOT me^™ program, are performing a public service. The Academy informs individuals participating in the SPOT me program that the screening physician is only providing a screening, is not providing medical care, and is not responsible for the patient’s follow-up care. The SPOT me program documents also clearly state that the screening physician does not have a physician-patient relationship with the screened individuals. That said, it is important for screening physicians to reinforce this message during actual screenings and, most importantly, to emphasize that the patient should see their own dermatologist for any necessary follow-up care.

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