EPs cannot safely assume that a consultant who gives advice over the phone will be held liable if a bad outcome results. Relevant documentation includes:
- what specific information the consultant received;
- whether the consultant actually examined the patient;
- whether the consult resulted in a change to the treatment plan.
If a consultant says, “I think it’s fine to discharge the patient for follow-up in the morning,” and such advice produces a devastating outcome, leading to a lawsuit, does the consultant who provided the advice to the EP face any liability?
“Whether or not a phone consultation results in a physician-patient relationship is a difficult question to answer,” says W. Ann Maggiore, JD, an attorney at Butt Thornton & Baehr in Albuquerque, NM.
Maggiore has seen several recent malpractice cases in which this issue became a point of contention. One named an EP who called for a surgery consult on a patient who presented with severe abdominal symptoms, consistent with foodborne illness.
“After the patient’s information was exchanged, the surgeon felt that the patient was not a surgical candidate at that time,” Maggiore explains.
During litigation, there was a dispute about what the surgeon was told over the phone, and whether it was the EP’s responsibility to inform the surgeon of a key piece of clinical information, or the surgeon’s responsibility to ask for it.
“The surgeon claimed that the ED physician had not provided him with the patient’s lactic acid level, and that this was critical in determining whether he needed to see the patient,” Maggiore says.
This makes it clear how important it is for an EP to document what information the consultant received, Maggiore underscores, adding that EPs should include the following documentation on phone consults:
- the name and phone number of the physician consulted and the service he or she is with;
- whether the consultant physically saw and examined the patient or just gave advice over the phone;
- a summary of the information provided to the consultant by the EP, and the consultant’s response;
- whether the EP requested that the consultant come in to see the patient.
If the consult results in a change in the EP’s plan or a new medication, it is likely a court will find a physician-patient relationship existed, Maggiore says. This exposes the consulting physician to liability. However, Maggiore occasionally sees ED charts that don’t mention a phone consult took place at all.
“If there is a note from the consultant, this may reveal more about what took place,” she says. “But it is best for the EP to do their own documentation and not rely on the consultant to write a comprehensive note.”
Many Factors Come into Play
There is some case law indicating that the physician-patient relationship requires the understanding and consent of both the physician and the patient, Maggiore says.
Courts generally hold that merely being “on call” does not automatically create a physician-patient relationship, nor does it impose a duty. Likewise, Maggiore says, “simply accepting a consult for future evaluation does not create a physician-patient relationship.”1
Under those circumstances, a doctor is not agreeing to enter into a contract with the patient, and no physician-patient relationship can be alleged to have existed, Maggiore explains.
“Merely listening to another physician’s description of a patient’s problem and offering a professional opinion regarding the proper course of treatment is not enough,” she says.2
Lisa Schmitz Mazur, JD, a partner in the Chicago office of McDermott Will & Emery, says these facts can become important in determining if a patient-physician relationship existed between a consultant and an ED patient:
- whether the consulting physician had access to and/or reviewed the patient’s medical file in connection with the consultation;
- whether the consultant received compensation for his or her services;
- the nature of the consultant’s recommendations.
“It is risky to assume that any consultation — even a phone consultation between two providers — is ‘informal’ and will not create a physician-patient relationship,” Mazur says.
The standard for what constitutes a physician-patient relationship is “constantly evolving,” Mazur notes. “New connected health technologies are changing the manner and modes in which patients and providers communicate with one another.”
Maggiore says video consults “raise a whole new level of risk” when EPs consult specialists. She advises including a copy of the video conference in the electronic medical record, so there is no question about what information was conveyed, and what the consultant’s recommendations were.
“It is prudent to properly document correspondence between the EP and the consultant in the patient’s medical record — particularly when the correspondence relates to information on which the treating physician’s diagnosis and treatment plan is based,” Mazur advises.
- Ortiz v. Glusman, 334 S.W.3d 812, 817 (Ct. App. El Paso 2011).
- Oja v. Kin, 229 Mich. App. 184, 190, 581 N.W.2d 739, 743 (1998).