Liability for Curbside Consults

Physicians often seek informal opinions from colleagues in treating their patients. Referred to as "curbside consults," these informal opinions can expose the consulting physician to malpractice liability. Most often, these consults come from family physicians and residents seeking advice from specialists. However, informal consults also occur between specialists in the same field as well as between fellow general practitioners.

The threshold issue in determining whether liability can be imposed for a negligent curbside consult is whether there is a physician-patient relationship between the consulting physician and the patient. Traditionally, it has been held that absent such a relationship, no malpractice liability can attach. However, some courts are holding consulting physicians liable for informal opinions where it is reasonably foreseeable that the treating physician would rely on the consultant's advice or where it is found that the consultant exercised independent medical judgment on behalf of the patient. While most courts have determined that a curbside consult is a service to the treating physician, not the patient, other courts have held physicians liable for rendering negligent informal opinions.

In one case, a cardiologist was held to owe a duty of reasonable care to a patient concerning whom he provided an informal consult. He advised the emergency room physician to send home a heart attack patient, who died at home three hours later. The court reasoned that a duty of care to the patient existed once the cardiologist gave an opinion as to the treatment course because the emergency room physician lacked the cardiologist's expertise and the cardiologist knew that his advice would be relied on. Courts have also found physicians liable for informal consults where the physician had a supervisory role over the physician seeking the consult and where the physician providing the consult was an on-call specialist consulting by phone.

In determining whether a physician-patient relationship has been formed by an informal consult, courts look to the following factors: whether the consulting physician has examined the patient; whether the consulting physician has had any written or oral communication with the patient; whether the consulting physician has reviewed the patient's medical records or diagnostic films; whether the consulting physician has been compensated for his services; and whether the consulting physician gives the advice only to the treating physician.

Courts refusing to impose liability for physicians providing informal consults cite the chilling effect such a decision would have on the sharing of medical knowledge among physicians. Courts have noted that attaching liability to consulting physicians is contrary to public policy because it would impede the potential for better medical care for society as a whole.