Some consultant recommendations come in the form of a formal, face-to-face evaluation in the ED. Many more are “curbside” consults, or casual conversations that may or may not be documented in the ED chart.
“In a majority of cases, curbside consults can be brought into evidence,” says John W. Miller II, principal of Sterling Risk Advisors in Atlanta.
If a malpractice suit occurs, the EP and the consultant likely will have different views as to whether their discussion constituted a “real” consult. “The vast majority of plaintiff’s attorneys will seek to bring a curbside consult in,” Miller says.
If the phone call from the EP arose because of the consultant’s on-call status, it’s clear that a patient/physician relationship was formed, says Miller, “but if it happened absent an on-call obligation, it’s case law-specific in every state.”
Miller says EPs should “make sure that the scope of the conversation is inclusive enough to provide a valuable opinion, rather than a cursory opinion based on limited facts.”
Is the EP asking for a general recommendation from the consultant, or a recommendation for a specific patient?
If the EP were to obtain a surgical consult for a patient regarding appendicitis and describes a specific individual in the ED at that point, “that’s more likely to come in, from a legal standpoint,” says John Tafuri, MD, FAAEM, regional director of emergency medicine at Cleveland (OH) Clinic and chief of staff at Fairview Hospital in Cleveland.
If the consultant makes a recommendation for a specific patient, and the EP documents that the case was discussed, Tafuri says, “it probably varies from state to state based on court rulings, but I think the consultant should consider themselves involved in the case.”
Many ED charts omit any mention of consultants. If so, it’s unlikely the plaintiff attorney will involve a consultant in the lawsuit, unless the defendant EP brings up the consultation in discovery. “Generally, if things aren’t in the medical record, plaintiff’s attorneys are unaware of the discussion,” Tafuri says.
On the other hand, if the EP documents, “Discussed with Dr. X, who told me it was safe to discharge the patient,” the consultant likely will become a defendant.
“It’s important for EPs to realize that when they start involving other physicians, if those physicians don’t know they are being involved in the case, it’s likely to result in an adversarial relationship between the two physicians,” Tafuri advises.
Upon learning that the EP documented every word of their “informal” conversation, consultants can become antagonistic. “This can be worse for the EP’s defense than having no consult documented in the chart at all,” Tafuri says.
The EP could end up in a situation in which the consultant and the plaintiff’s expert both say that the EP did the wrong thing.
“The ER physician needs to clearly delineate to the consultant, ‘I’m consulting you on this patient, and I’m going to mention your name in the chart,’” Tafuri explains. If EPs asks general-sounding questions, on-call doctors may not realize they’re being consulted “officially.”
Miller agrees that EPs should tell consultants they are documenting their recommendations. “It’s not fair for one party to document and the other not to.”
Avoid Adversarial Relationship
Good documentation on a consultant’s recommendations can bolster the EP’s defense. However, the EP can’t hide behind it completely.
“To the extent that the EP tries to deflect responsibility to the on-call physician, it’s really detrimental to the defense,” Tafuri notes. “The EP is always going to be involved in the case, no matter what.”
Charting such as “Talked to Dr. X, and he said it’s OK to send the patient home” won’t get the EP off the hook legally. “If someone is sent home, and there’s a bad outcome, trying to say the consultant made the decision — when it’s really the EP’s decision to send the patient home or not — just hurts the EP’s position in the case,” Tafuri says.
It also creates an adversarial relationship between the EP and the consultant. “It’s one thing to say, ‘I’ve discussed the patient with Dr. X, and he agrees with my plan regarding discharge and follow up as an outpatient.’ It’s another thing to try to lay it on somebody else,” Tafuri warns.
It’s fine for the ED chart to indicate that the consultant offered an opinion or a suggestion. “But it should be clear that the EP is the one making the final decision about the patient’s disposition,” Tafuri adds.
Consultants don’t always agree to come to the ED to evaluate the patient in person, even when the EP believes it’s necessary. “In that case, the EP needs to be very clear with the on-call consultant and say, I’m not comfortable with this,’” Tafuri says.
EPs should state clearly that an in-person evaluation is requested, Tafuri stresses. “Consultants do have a legal obligation under EMTALA to come in, if you request it when they are on call.”
This is true even if the EP reflects on the situation after the initial interaction with the consultant and decides that an in-person evaluation by the consultant is necessary after all.
“It’s important to be up-front and honest with the consultant so they don’t feel as though you are trying to work them into a potential legal case,” Tafuri offers.
When Tafuri has insisted that a consultant come down to see an ED patient whom the consultant wanted to send home and Tafuri wanted to admit, the consultant admitted the patient in every instance.
“They’ve never discharged the patient when they’ve seen the patient themselves,” Tafuri recalls. “They usually see that the patient appears more ill than they expected.”