"Informal" consults can lead to malpractice claims

Key Points

Two doctors, a family practitioner and a cardiologist, are having lunch in the hospital cafeteria. The FP says he just saw a patient with abdominal pain. The cardiologist says it's probably just indigestion. The FP solicits no more advice, and the patient later goes into cardiac arrest and dies. The patient's widow sues the FP and the cardiologist. What happens?

You may wonder whether you should ever ask for advice-or whether you should give advice. Could you be found liable if the advice is wrong? Collegial sharing of medical information is an important part of medicine and should be encouraged. It's when you discuss diagnosis and treatment of a specific patient that you could run into trouble.

The FP who asks for the consult has the primary responsibility for the care of the patient and, therefore, the bulk of the liability. His standard of care involves judging whether a consultation is needed, choosing the correct specialty, selecting a reputable doctor in that specialty, and communicating with the specialist before and after the consultation.

In the above example, maybe the FP should have consulted with a gastrointestinal specialist or a different cardiologist. Or maybe he should have dignified the entire process with a formal consult.

On the other hand, the informal consultant-specialist may not think he will be sued because his name is not on the record. That would be a mistake. A doctor-patient relationship and a duty to the patient are established by informal advice. This duty is the first element of a malpractice case and can make the consultant a potential defendant.

In depositions, the FP-defendant will be asked if he discussed the case with anyone, and any other doctor he names stands a good chance of being named in the lawsuit. If the patient dies or has a serious injury, the doctor-defendant will likely have pretty good recall.

The second element in a malpractice case is departure from the standard of care of the reasonable physician. The specialist might think the standard of care would be lessened because the consultation is informal and/or free. But the standard of care is the same for informal advice as it is for formal, for billed care as well as for free care. You must use the same diligence, knowledge, skill, and research, and you must act as a "reasonable physician in your specialty."

Since the informal consult is held to the same standard of professional expertise and judgment as any other consult, the question arises "Why not make it a formal consultation?" There are most likely prior records to be reviewed and an examination is probably needed. If you need to run tests on the patient, or if you need equipment, you will need the patient to come to your office.

Some doctors document a record and keep a separate file on informal consults. Entries can read: "Dr. X spoke to me about his case. But I only gave generic answers." If you are ever called to testify in court, you could prove you never gave specific advice, but rather suggested possibilities through generic answers. Doctors should treat only in their own area of expertise, because they could also be held to the standard of care in the appropriate specialty.

The author is a health-care attorney in Mt. Kisco, New York, specializing in risk-management issues. She can be reached at lj@bestweb.net. Malpractice Consult deals with questions on common professional liability issues. Unfortunately, we cannot offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to memalp@advanstar.com
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