A concerning case from Minnesota: physicians may be held liable for “curbside consults.” But does the case really indicate that?

May 12, 2019  |  General
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“In a case that could have wide-reaching implications for medical practice in Minnesota, the Minnesota Supreme Court issued a ruling on April 17 in the case of Warren v. Dinter holding that the existence of a physician-patient relationship is not a prerequisite for a medical malpractice action. Rather, a person may sue a physician for malpractice – even if that person was not a patient of the physician – if the harm suffered by the person was a “reasonably foreseeable consequence” of the physician’s actions.” 

The decision in question concerned a patient who came to an outpatient facility and was evaluated by a nurse-practitioner, who thought the patient might need to be admitted to the hospital. She called the hospitalist (today’s term for physicians who specialize in only caring for hospitalized patients) at the hospital that practice generally used to discuss it and the hospitalist physician did not recommend hospitalization. The nurse practitioner accepted this recommendation and sent the patient home. Note that the hospitalist neither examined the patient nor had access to the patient’s medical record; he was not even physically present in the building. The patient later died from severe infection and the patient’s family sued both the nurse practitioner AND the hospitalist.

Physicians get what are often called “curbside consults” all the time. I may call a subspecialist at the nearby University Hospital to ask some questions about a patient and get advice about what I should do. I’m ultimately responsible, of course, for whatever I do or don’t do but I may just need some advice or sometimes just another person to bounce ideas off. Similarly, physicians in facilities around the region who want to transfer a child to my PICU always call me for advice about what to do before the child gets to me — it’s totally routine. Good medical practice absolutely needs these sorts of interactions to give good care. The university system I deal with, like many such facilities, even has a special phone number for me to call to get quick access for expert advice. Traditionally, in a legal sense the physician providing the curbside consult is not liable for the advice because he or she doesn’t have a formal relationship with the patient; they have never seen the patient, never seen the actual medical records, and never examined the patient. At first glance the decision from Minnesota has some ominous implications for this universal medical practice. But does it really?

Of course, as with most things, the devil is in the details, especially when considering how generalizable this court decision is to usual practice. I am not a lawyer, of course, but I did look at the actual decision here. The first lines of the decision reads: “A physician-patient relationship is not a necessary element of a claim for professional negligence. A physician owes a duty of care to a third party when the physician acts in a professional capacity and it is reasonably foreseeable that the third party will rely on the physician’s acts and be harmed by a breach of the standard of care.” That, to me, is a bit chilling. This is because the physician giving the advice is giving it based upon what he is told, and what he is told may be incorrect or incomplete.

It is important to point out that the Minnesota Supreme Court did not find for the patient. The court ruled only that the hospitalist physician could be sued and remanded the case back to the lower court. The language also stated the hospitalist “denied” the hospital admission. That’s a different thing than recommending against it. The decision also states the physician must “breach the standard of care.” Those are key details, I think, in assessing what this decision means. In my own practice, I never outright deny an admission if someone calls me asking for one. I may suggest the child not come to the PICU, but I facilitate admission to the appropriate hospital unit. If my PICU is full so I don’t have a bed for the patient, I help the calling physician find one at another facility. But if I am accepting a patient I do give advice about what to do, and that advice is based upon what a person not trained in pediatric critical care is telling me over the phone. It is not uncommon for whatever I’m told to be wrong, or at least incomplete. I would hope that would offer me some legal defense if ultimately necessary.

The court did go into what it called standard curbside consultations, and described why this particular interaction was not such: “Our decision today should not be misinterpreted as being about informal advice from one medical professional to another. This case is about a formal medical decision — whether a patient would have access to hospital care—made by a hospital employee pursuant to hospital protocol.” The court also provided some examples of how this expanded definition of professional duty has been applied in the past to both medical and legal practice. Also, a conversation between a nurse practitioner and a physician is intrinsically not a a conversation between professional equals. I think this carried some weight with the court.

The bottom line for me is that this decision is somewhat concerning, although much less so if narrowly applied. Anybody deeply concerned should read the actual decision linked above.


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