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AJR 2002; 178:1353-1359
© American Roentgen Ray Society


Malpractice Issues in Radiology

Curbstone Consultations

Leonard Berlin1

1 Department of Radiology, Rush North Shore Medical Center, 9600 Gross Point Rd., Skokie, IL 60076, and the Rush Medical College, Chicago, IL 60612.

Received October 10, 2001; accepted after revision October 11, 2001.

 
Case summaries are based on actual events and lawsuits, although certain facts have been omitted or modified by the author. All opinions expressed herein are those of the author and do not necessarily reflect those of the American Journal of Roentgenology or the American Roentgen Ray Society.

Address correspondence to L. Berlin.


Introduction
Top
Introduction
The Case
Medical—Legal Aspects
Discussion
Curbstone Consultation and the...
Summary and Risk Management
References
 

Curbstone (adj): "Operating on the street without maintaining an office..." [1]


The Case
Top
Introduction
The Case
Medical—Legal Aspects
Discussion
Curbstone Consultation and the...
Summary and Risk Management
References
 
On a late Friday afternoon, the interventional radiologist member of a community hospital—based radiology group received a telephone call from a nurse in the hospital's cardiac catheterization suite. The nurse said that a cardiologist who was performing an angiogram on a patient was requesting that the radiologist walk over to the suite to speak with him. On entering the catheterization area, the interventional radiologist was approached by the cardiologist, who had apparently been in the midst of performing a lower extremity angiogram. Walking over to a bank of viewboxes on which were mounted various arteriographic radiographs, the cardiologist told the radiologist that he needed some advice. Pointing to radiographs that showed extensive artherosclerotic disease of the left popliteal artery, the cardiologist asked whether the radiologist thought that the patient would be better treated by surgery or angioplasty followed by stent placement. The radiologist replied that in his opinion, the patient would be a suitable candidate for angioplasty and stenting, assuming that the "patient's runoff was okay." The cardiologist thanked the radiologist and resumed the procedure. The radiologist left, went home for the weekend, and quickly forgot about the incident.

Ten months later the radiologist, along with the cardiologist and the patient's attending physician, were sued for medical malpractice. The lawsuit charged that the three codefendants had been negligent for performing an angiographic and stenting procedure that was "contraindicated by the patient's condition" and that "led to the amputation of the patient's leg." Shocked at having been sued by a patient to whom he had never given medical care or even knew, the interventional radiologist contacted his professional liability insurance company. The company appointed a defense attorney, who immediately initiated an investigation of the case.

Review of the medical records disclosed that the patient was a 68-year-old woman who had consulted her family physician because of intermittent chest pains and claudication of her left leg. The physician referred the patient to a cardiologist. After determining that the patient was not suffering from heart disease, the cardiologist, after obtaining consent, proceeded to perform a left lower extremity arteriogram with possible angioplasty. The report of the study authored by the cardiologist stated that extensive atherosclerotic disease was found in the popliteal artery and that "after consultation with" the interventional radiologist, he decided to perform angioplasty and stenting. This was accomplished, but within 1 hr after the procedure, the patient's leg became cold and mottled. At that point a vascular surgeon was called. The patient was taken to the operating room, where an intraoperative angiogram showed what appeared to be a fresh embolus in the posterior tibial artery and extensive atherosclerotic disease of the peroneal and anterior tibial arteries. The surgeon attempted an embolectomy and arterial bypass, but the procedures were not successful. Two days later the patient underwent an above-the-knee amputation.

After reviewing the medical record with the defense attorney, the defendant interventional radiologist was appalled. The radiologist explained that his brief discussion with the cardiologist was not a consultation; he had not been asked to examine the patient, discuss the clinical findings, or "carefully" review the radiographs. In fact, said the radiologist, he did not even know the patient's name. "All I was asked to do was give a general opinion to the cardiologist who asked me for it," said the radiologist. The radiologist further pointed out that, in his opinion, the cardiologist's treatment was faulty, inasmuch as the cardiologist failed to obtain a complete arteriogram of the patient's leg to determine whether there was adequate arterial flow into the foot. "The cardiologist should never have attempted angioplasty and stenting unless he knew there was adequate runoff into the foot," asserted the radiologist.


Medical—Legal Aspects
Top
Introduction
The Case
Medical—Legal Aspects
Discussion
Curbstone Consultation and the...
Summary and Risk Management
References
 
Over the next 6 months, legal discovery proceedings were conducted. In a deposition, an expert cardiologist retained by the plaintiff's attorney severely criticized the conduct of the defendant cardiologist but declined to comment about actions of the defendant radiologist because it was "not clear that the radiologist had anything to do with the case." In his deposition, the defendant cardiologist acknowledged that the decision to proceed with angioplasty and stenting was his own, and that although he had "consulted" with the defendant radiologist, he did not rely on the radiologist's opinion in determining his clinical treatment of the patient. The plaintiff's attorney did not produce a witness expert in radiology.

After the depositions had been obtained, the attorney representing the defendant radiologist petitioned the court to dismiss the defendant radiologist from the lawsuit, arguing that the radiologist had never established a physician—patient relationship with the patient. The court declined to dismiss the radiologist and ordered the parties to prepare for trial, while at the same time encouraging them to settle the matter.

After protracted discussions among the plaintiff's attorney, the defense attorneys, and the claims manager for the professional liability insurance company that insured the three defendant physicians, a settlement of $800,000 was negotiated. All the indemnification was attributed to the cardiologist; no monies were paid on behalf of the radiologist or the family physician.


Discussion
Top
Introduction
The Case
Medical—Legal Aspects
Discussion
Curbstone Consultation and the...
Summary and Risk Management
References
 
Informal consultations or professional opinions rendered by physicians who are called or paged away from another activity, who are in a noisy and crowded office or hallway en route elsewhere, or who are buttonholed inside or near their hospital department are traditionally referred to as curbstone (or curbside) consultations [2]. Because of the suddenness of the request for information and the environment in which the consultation is rendered, the physician offering it may well be distracted from giving the kind of thoughtful opinion that may come from a formal consultation or a thorough discussion of assumptions behind the informal advice [3, 4]. The defendant interventional radiologist in the case described here was asked to give a curbstone consultation and was subsequently sued for doing so. Although this particular radiologist was eventually determined to be free of liability, the lawsuit nonetheless brings into sharp focus the larger question of whether radiologists, who have traditionally viewed the giving of curbstone consultations relating to radiographic interpretations and advice regarding radiologic procedures as integral parts of their culture and day-to-day practice, place themselves in legal jeopardy for indulging in this activity. Let us explore this question in detail.

A necessary element for any action alleging medical negligence is the existence of a physician—patient relationship, from which arises the duty of the physician to act with reasonable and ordinary skill and care in rendering service to the patient [5]. In the context of radiology practice, it is a well-recognized principle that when patients undergo radiographic studies that are interpreted by a radiologist, there is established between the radiologist and the patient a legal physician—patient relationship that imposes on the radiologist the duty to exercise reasonable and ordinary skill and care, even if the radiologist has no direct contact with the patient [6]. It is similarly recognized that a legal physician—patient relationship is established when a patient undergoes an interventional radiologic procedure performed by a radiologist, receives a radiation treatment administered or supervised by a radiation oncologist, or receives professional advice relating to a medical or radiologic issue directly from a radiologist [7]. What is not clear is whether a physician—patient relationship is established between a radiologist who is asked by another physician to give an informal opinion or curbstone consultation regarding a patient and the patient about whom the consultation is given [8]. This question is fundamental, for if no physician—patient relationship is recognized by the courts, there is no duty and thus no liability for wrongdoing imposed on the physician.

Although I am unable to find any appeals court decision that deals specifically with the issue of medical malpractice and radiologic curbstone consultations, hints as to how the courts might approach the subject can be gleaned from various court decisions that have focused on nonradiologic curbstone consultations. Most state courts have held physicians who give such consultations immune to malpractice liability by concluding that a physician—patient relationship had not been established, although a few notable exceptions exist.

I shall begin my review with a decision rendered 26 years ago in which the Alabama Supreme Court, with great clarity, summarized its position on curbstone consultations, a position that has since been adopted by many other state courts [9]. In the Alabama case, a woman who was injured in an automobile accident was admitted to a hospital. The physician who undertook treatment of her injuries informed the woman that he was going to call a second physician to obtain advice regarding treatment of the woman's injuries. In a later discharge summary dictated by the first physician, he made note of a telephone conversation he had held with the consulting physician and of the suggestions made by the second physician regarding treatment. Some months later the patient filed a malpractice lawsuit against both physicians, alleging permanent injuries resulting from negligent treatment. The consulting physician petitioned the court for dismissal, arguing that he had never met the patient, did not have her as a patient, and had never been requested to serve as a consultant in the case. The consulting physician acknowledged that he had several telephone conversations with the primary care physician, and in the course of these, general discussions were held regarding treatment of the plaintiff patient, but that the plaintiff's name had never been mentioned, and thus a physician—patient relationship had never been established. The lower court granted the dismissal, but the plaintiff appealed to the state's supreme court. In affirming the dismissal of the consulting physician, the court focused on the basic principles of the patient—physician relationship:

A physician owes his patient the duty of due care in his treatment of that patient. That is not controverted. The question is whether there is any evidence to suggest that a physician-patient relationship was ever created between [the consulting physician] and the plaintiff-patient.... A physician is under no obligation to engage in practice or to accept professional employment, but when the professional services of a physician are accepted by another person for the purposes of medical or surgical treatment, the relation of physician and patient is created. The relation is a consensual one wherein the patient knowingly seeks the assistance of a physician and the physician knowingly accepts him as a patient.... A physician may accept a patient and thereby incur the subsequent duties although his services are performed gratuitously or at the solicitation and on the guarantee of a third person....

In this case [the defendant consultant] says that he has never seen the patient.... We fail to see any evidence from which it could be concluded that [the defendant] has consented to treat the patient, or any from which it could be inferred that he consented to act in a consulting capacity....

The mere discussion between professional people of hypothetical situations cannot be viewed as a basis for liability. To hold otherwise would tend to adversely affect the quality of the services they offer to members of the public. Physicians, lawyers, dentists, engineers, and other professionals, by comparing problem-solving approaches with other members of the disciplines, have the opportunity to learn from one another. Possessing this freedom, they are better positioned to bring theory into practice for the benefit of those whom they serve. Our decision in this case preserves these essential learning situations for all professional people.

Although all courts accept the legal premise that for a physician to owe a duty to a patient, a physician—patient relationship must exist between them, the determination of whether such a relationship exists in individual cases may not be a simple matter. The courts will review the facts of a specific case to decide whether a physician—patient relationship can be fashioned, and if none is found to exist, then no duty toward the patient will be imposed on the physician. However, for public policy reasons, courts tend to favor compensation for persons alleging injury from medical malpractice by giving them considerable leeway in the evidence required to establish the existence of a physician—patient relationship [6].

An example of how one court took an ambiguous set of facts and fashioned the existence of a physician—patient relationship can be found in an Illinois Appellate Court decision rendered in 1982 [10]. There, a patient with a right-knee injury was examined by a physician in a hospital emergency department. Radiographs failed to disclose a fracture, but the radiologist reported a giant cell tumor, suggestive of malignancy. The treating physician telephoned an orthopedic surgeon, who, after discussing the case with the physician, agreed to see the patient in consultation. The treating physician instructed the patient to call the orthopedic surgeon for an appointment but did not disclose to the patient the nature of the radiographic findings. The patient scheduled an appointment with the orthopedic surgeon but failed to appear. The appointment was rescheduled, but when the patient advised the surgeon that he would be late, the patient was informed that the orthopedic surgeon would not see him. As a result, treatment was delayed, and eventually the patient died. Before his death, however, the patient sued the orthopedic surgeon for negligence. The orthopedic surgeon requested the court to dismiss him from the lawsuit, arguing that he had never been informed of the radiographic results and had been told that the patient was being referred only because of swelling of the knee. The surgeon claimed that because he never saw the patient at any of the scheduled appointments, no physician—patient relationship had ever been established. The trial court agreed and dismissed the orthopedic surgeon from the case, but the appellate court reversed the lower court's decision, stating:

Plaintiff argues defendant did in fact accept referral of this case and scheduled appointments which plaintiff kept, but then abandoned plaintiff without warning him as to his condition or referring him to another physician. Defendant asserts that he never saw plaintiff, treated him or medically advised him [and that] no consensual physician-patient relationship came into existence and no duty of care to plaintiff arose.... In the present case, defendant was a practicing physician who had accepted referral of plaintiff's case from another doctor, after being advised plaintiff may be suffering from a serious illness, and the defendant declined to treat plaintiff without informing him of his condition or referring him to another physician for care to his damage.... To a physician alleged to have knowledge that the patient referred to him by another doctor may have a malignancy of the knee it would appear plaintiff's subsequent injury was reasonably likely and foreseeable.... A physician's duty of due care and diligence applies during the relationship of physician and patient and lack of diligence after assumption of the case renders the physician liable for malpractice. We conclude that the relationship between plaintiff and defendant was sufficient to impose a duty upon defendant to conform to the requisite standard of care.

The more conventional position was taken by the Oregon appellate court when it ruled that a pediatrician was not liable for a curbstone consultation [11]. There, a family practitioner admitted a 6-week-old infant to the hospital with a diagnosis of pneumonia. On the following morning, the physician happened to meet a pediatrician in the hallway and began discussing the patient's laboratory and radiographic findings with the pediatrician. The defendant pediatrician walked into the child's room and noted that she was in no apparent distress, but the pediatrician did not examine the patient or review radiographs or test results. During the next 2 weeks, the infant was discharged but was later readmitted with a diagnosis of meningitis. She later suffered permanent brain damage, and the child's family then filed a malpractice suit against both physicians. The pediatrician petitioned the court to be dismissed from the case, arguing that no doctor—patient relationship had been established. The court agreed and upheld the dismissal of the pediatrician.

In a somewhat similar situation involving a discussion between a primary care physician and a consulting physician, a New York appellate court also affirmed the dismissal of the consulting physician. The court stated [12]:

The defendant gave an informal opinion to a fellow physician regarding a case with which the defendant had no connection whatsoever. Indeed, there has been no showing that the defendant had any contact with the patient, saw any records relating to the case, or even knew the patient's name. Upon these facts, it cannot possibly be found that a relationship existed between the defendant and the plaintiff that gave rise to a duty on the part of the defendant toward the deceased patient.

Taking a different tack, a Texas appellate court determined that a telephone conversation with a consulting physician under certain circumstances did establish a physician—patient relationship, thus making the physician susceptible to liability for medical malpractice. A pregnant woman whose labor had begun in her eighth month of pregnancy was taken to a small rural hospital for an examination to determine whether she could be transported to a larger hospital 90 miles (144 km) away. After the assessment was made by a nurse, it was communicated by telephone to a physician who was on call that day for the rural hospital. On the basis of the nurse's report, the physician approved the transfer. En route the woman gave birth in the ambulance, and the baby died. The woman later sued the physician who had approved the transfer. The plaintiff alleged that the physician had been given sufficient information from the nurse to determine that transfer to the larger hospital was impossible and that delivery at the rural hospital should have been initiated. The defendant physician responded that he should be dismissed because no doctor—patient relationship could be established merely through a telephone call. In ruling that a physician's "voluntary on-call status automatically imposes on him a duty to treat the patient," the Texas appellate court stated [13]:

[The defendant physician] was asked to evaluate certain information and make medical decisions whether [the patient] could safely be transferred.... We conclude that in evaluating the status of the [the patient's] labor and giving his approval, he established a doctor-patient relationship with [the patient] and accepted the duties which flow from such a relationship, specifically the duty to comply with the applicable standard of care for a physician in an on-call capacity.... It is axiomatic [that a] doctor-patient relationship may arise from, briefly exist, and be limited by the unique circumstances presented in a transfer situation.

A Michigan appeals court went into great detail in explaining its ruling supporting an obstetrician who was sued for giving a curbstone opinion to another obstetrician regarding the delivery of a baby who was born with cerebral palsy [14]:

Defendant's medical opinions were addressed directly to [the primary obstetrician] as a colleague, and not indirectly to plaintiff as patient. The opinions were not in the nature of prescribed course of treatment, but were recommendations to be accepted or rejected by [the primary obstetrician] as he saw fit. In short, the telephone conversations between [the primary obstetrician] and defendant did not give rise to a physician-patient relationship between plaintiffs and defendants.... Unquestionably, defendant's recommendations were part of the body of information available to [the primary obstetrician] as he treated the patient. We do not believe that this limited and remote connection to the case can be equated with "treatment," however, any more than the author of a medical treatise or article which [the primary obstetrician] might have consulted could be considered to have "treated" plaintiffs....

Defendant here was dealing with medical doctors who were not under his direction or control. He was entitled to assume that these doctors were cognizant of the circumstances under which the various cases were discussed, i.e., without defendant having personally examined the patient, and would themselves in dealing directly with their patients rely on their own ultimate opinions following proper medical procedures. Imposition of liability under these circumstances would not be prophylactic but counter-productive by stifling efforts at improving medical knowledge.... The extension of potential malpractice liability to doctors with whom a treating physician has merely conferred, without more, would unacceptably inhibit the exchange of information and expertise among physicians. This would benefit neither those seeking medical attention nor the medical profession.

The Supreme Court of Nebraska also handed down a decision favorable to a consulting pediatrician who offered curbstone advice to delay an exchange transfusion for a jaundiced newborn who later suffered brain damage [15]:

Notwithstanding [the pediatric consultant's] advice that an exchange transfusion be delayed pending the development of further data and his invitation for further discussion thereafter, the conversation between him and [the primary pediatrician], without more, was, as a matter of law, too general to support an inference that [the consultant] had undertaken to participate in the infant's care and treatment. Absent such an inference, the record failed to support a finding that there existed a physician-patient relationship between the infant and [the consultant].

In 1996, an Illinois appellate court concurred that a telephone conversation between physicians does not necessarily establish a physician—patient relationship. In the Illinois case, a child was admitted to a hospital emergency department after a fall, but a pediatrician believed the child was more likely suffering from meningitis. The pediatrician telephoned a neurosurgeon to discuss the case, and the neurosurgeon agreed with the pediatrician that an infectious process was more likely. The two physicians had no further contact with each other. Later, the child was transferred to another hospital, where a spinal cord injury was diagnosed and severe neurologic impairment resulted. The patient's family later sued the neurosurgeon, but the neurosurgeon argued for dismissal because no physician—patient relationship had been established. In its opinion sustaining the dismissal of the neurosurgeon for the curbstone consultation, the court stated [16]:

[The neurosurgeon] often received informal inquiries from other doctors asking questions and seeking suggestions. These inquiries do not include a request to see a patient, review a [patient's records], or render an opinion, but only to discuss the case. He considered this a courtesy service for which he did not bill....

The relationship of physician and patient is one of trust and confidence. It is a consensual relationship in which the patient knowingly seeks the physician's assistance and the physician knowingly accepts the person as a patient. A consensual relationship can exist where other persons contact the physician on behalf of the patient, but this is not a case in which [the neurosurgeon] was asked to provide a service for [the patient], conduct laboratory tests, or review test results. [The neurosurgeon] did nothing more than answer an inquiry from a colleague. He was not contacted again and he charged no fee. A doctor who gives an informal opinion at the request of the treating physician does not owe a duty of care to the patient whose case was discussed.

Plaintiffs suggest what needs to be done is to find a physician-patient relationship to result from every such conversation. The consequence of such a rule would be significant. It would have a chilling effect on the practice of medicine. It would stifle communication, educational and professional association, all to the detriment of the patient. The likely effect in adopting the plaintiff's argument also would be that such informal conferences would no longer occur. To reiterate, this would inhibit the exchange of information and expertise among physicians and would not benefit the medical profession or persons seeking treatment.

A Georgia appellate court also ruled similarly in a case that focused on a radiographic interpretation, although the defendant was an emergency department physician rather than a radiologist [17]. In that case, a patient who had been hospitalized for surgery developed postsurgical respiratory problems and required insertion of both breathing and nasogastric tubes. The surgeon who inserted the tubes asked the defendant, who was on duty in the emergency department, to view a radiograph to verify that the tubes were properly placed. The defendant looked at the radiographs, determined that the tubes were incorrectly placed, and noted that fact in the patient's chart. A pneumothorax was later discovered that eventually led to the patient's death. The emergency department physician was sued for malpractice by the family of the deceased patient for failing to recognize and report the pneumothorax, which apparently had been visible on the radiograph. A trial court dismissed the defendant emergency department physician on the basis that no physician—patient relationship had been established. The case was appealed to the appellate court, which upheld the dismissal with the following comments:

Although [the defendant emergency department physician] unquestionably took action with respect to the decedent, viewing the x-ray and making a notation on her chart, nothing in the record justifies the inference that [the defendant] was acting as her doctor. Accordingly, the trial court properly found that no doctor-patient relationship existed.... [To find otherwise] would be detrimental to our healthcare delivery system, causing competent professionals who happen to be on the hospital premises but have no relationship to the patient to decline out of natural prudence to perform even minimal courtesies as a favor to busy hospital staff. We find this danger to be greater than the risk suggested by [the plaintiff] of insulating such physicians from liability.


Curbstone Consultation and the Radiologist
Top
Introduction
The Case
Medical—Legal Aspects
Discussion
Curbstone Consultation and the...
Summary and Risk Management
References
 
Although the Georgia court exonerated the emergency department physician from liability for misinterpreting a radiograph by finding that no physician—patient relationship existed, it cannot be assumed automatically that the same determination would apply to a radiologist whose primary professional duty is to interpret radiographs. This distinction was illustrated by a Texas appellate court [18]. In that case, involving a curbstone consultation from one obstetrician to another, the court refused to establish a physician—patient relationship between a patient and the obstetrician who had been consulted by telephone by another obstetrician regarding management of the patient's delivery. The court first addressed curbstone consultations between clinicians:

[The defendant obstetrician's] opinions regarding the proper course of treatment were addressed to [the primary obstetrician]. The [primary obstetrician], as the patient's treating physician, was free to accept or reject those opinions as he saw fit. Even [the primary obstetrician] acknowledged that he was ultimately responsible for the patient's treatment.... Nothing in the records suggests that either doctor contemplated that the [the defendant obstetrician's] comments were binding on [the primary obstetrician] or that [the consulting obstetrician] had any authority or responsibility to control the course of the patient's treatment.

However, in another portion of its written decision, the Texas court warned that the protective attitude taken by the court toward curbstone consultations in general may not apply to specialists such as radiologists. In explaining how a physician (such as a radiologist) may unknowingly enter into a physician—patient relationship by giving a curbstone interpretation of a radiograph, the court said [18]:

The important fact in determining whether [there is a physician-patient] relationship is...whether [the consulting physician] was contracted for with the express or implied consent of the patient or for his benefit.... Where...healthcare services are rendered on behalf of the patient and are done for the patient's benefit, a consensual physician-patient relationship exists for the purposes of medical malpractice.

A recent Illinois appellate court decision, although dealing specifically with cardiologists, nonetheless bears directly on the question of whether radiologists would escape liability for curbstone consultation to the same extent as nonradiology physicians [19]. In this case, a man with chest pain and a history of myocardial infarction consulted a cardiologist. The patient brought with him a coronary angiogram that had been obtained elsewhere. Not being trained in interpreting or performing coronary angiography, the examining cardiologist asked an interventional cardiologist to review the radiographic study and make recommendations as to whether the patient should undergo angioplasty, bypass surgery, or noninterventional medical care. After reviewing the study, the interventional radiologist informed the examining cardiologist that angioplasty was indicated. The examining cardiologist then called in another interventional cardiologist to perform the angioplasty. During the angioplasty, the patient died. Later, a malpractice suit was filed by the family, alleging that the angioplasty had been contraindicated because of the patient's clinical condition.

The defendant interventional cardiologist who had reviewed the coronary angiograms petitioned the court for dismissal, claiming that no physician—patient relationship had been established between the deceased patient and himself. The defendant cardiologist claimed that he had neither reviewed the patient's medical records nor had any contact with the patient. He further claimed that the recommendation as to whether the patient should undergo angioplasty was the responsibility of the physician who examined the patient, and that he had indicated only that the patient was a "candidate" for angioplasty. The Illinois court, however, ruled that a physician—patient relationship between the patient and the interventional cardiologist had been established [19]:

We note that most of the cases that defendants have cited that found no physician-patient relationship or other duty owed by a physician are easily distinguishable as not involving a consulting physician providing a service for a patient. [The defendant interventional cardiologist] reviewed test results and interpreted them.... We find helpful the cases that have found a physician-patient relationship between the patient and a radiologist or a pathologist, who had no actual contact with the patient, where they performed a service for the benefit of the patient. Similarly, a trier of fact might conclude that [the interventional cardiologist] performed a service for [the patient] as part of a team of physicians. [The interventional cardiologist] knew or should have known that [the original examining cardiologist] was not trained to read angiograms and did not perform angioplasty operations.... He knew or should have known that his medical opinion would be passed on to the patient. If his medical opinion would have been that [the patient] was not a candidate for an angioplasty operation, it was probable that there would not have been an angioplasty operation. On the other hand, if his medical opinion was that [the patient] was a candidate for an angioplasty operation, it was probable that [the examining cardiologist] would inform [the patient] that he could have an angioplasty procedure....

When [the examining cardiologist] needed an interventional cardiologist to read an angiogram and give an opinion, he would turn to someone else and would rely on that opinion.... The defendant interventional cardiologist gave his medical opinion during the regular course of his duties and not as a mere volunteer. [The interventional cardiologist] argues that his opinion was "informal".... Formality of an opinion is not a determinative test of the presence of a physician-patient relationship.... According to [the examining cardiologist], he was not the physician ultimately responsible for determining whether angioplasty was possible because he was not qualified to evaluate angiograms.... After the film was reviewed, [the examining cardiologist] met with [the interventional cardiologist] in the office, where they discussed [the patient's] history and the decision was made to perform angioplasty.... In addition, [the examining cardiologist] recorded on the [the patient's] hospital chart that "catheterization reviewed by [the interventional cardiologist]."

The relevance to radiologists of this cardiology case is quite obvious. Most of the court decisions reviewed in this article have dealt with curbstone consultations that consisted of informal discussions, sometimes between peers, other times between a primary care physician and a specialist. In almost all of them, the physician requesting the opinion relied on himself rather than on the curbstone consultant to make the ultimate decision as to patient treatment. In the decision involving the cardiologist, however, the court highlighted the distinction that differentiated that case from all others: the physician requesting the curbstone consultation relied not on himself, but rather on the curbstone consultant to determine the patient's treatment. Thus, it was the degree of reliance placed on the curbstone consultant by the requesting physician that determined whether the consultant would be held liable. It is therefore quite likely that courts called on to rule on the question of whether radiologists who give curbstone consultations establish a physician—patient relationship with the patient being discussed may well delve into the nature of the radiographic findings and the degree to which the requesting physician relied on the radiologist's knowledge. The key question is likely to be whether the facts are such that the radiographic findings are easily discernible to the requesting physician alone, or whether they are such that they can be seen and interpreted only by a highly skilled radiologist.

Although curbstone consultations are perceived as an essential method of communication between physicians, some malpractice insurance companies have informed their insureds that these consultations should not be rendered under any circumstances because of the potential medical—legal burden [20]. At least one physician, an endocrinologist, has spoken out quite forcefully against offering any kind of curbstone consultation [Block MB, personal communication]:

The reality in clinical practice today is that the congeniality and trust between physicians which has existed for the past 25 years is no longer present. Every physician is concerned about his or her exposure to medical—legal problems. It's not in the patient's best interest to respond to curbstone consultations since the consulting physician does not have available to him all of the records, much less the patient, when offering "advice." In the interest of good patient care, we do indeed need to be concerned regarding curbstone consultations. I agree with the position of our local malpractice insurance carrier that curbstone consultations should not be rendered under any circumstances.


Summary and Risk Management
Top
Introduction
The Case
Medical—Legal Aspects
Discussion
Curbstone Consultation and the...
Summary and Risk Management
References
 
Notwithstanding the potential legal liability that may be imposed on radiologists who participate in curbstone consultations, such consultations have always been and probably will always remain an integral part of radiology practice. As has been pointed out by others [21], such questions as "Can I get your thoughts?" "Can I run something by you?" or "Can you take just a quick look at this X ray?" will likely forever be posed to physicians who specialize in radiology or other cognitive disciplines.

Whether the courts will impose medical malpractice liability for radiologic curbstone consultations depends on the specific content of the consultation and the circumstances under which it is given. However, on the basis of the state appeals court decisions reviewed in this article, several generalizations can be made. A physician—patient relationship does not arise when a physician such as a radiologist provides general advice to a colleague on the basis of an informal request for assistance [22]. If, however, the radiologist reviews a radiologic study or portions of a patient's chart when offering the curbstone consultation, or if a court determines that the advice or information given is so specialized that the requesting physician has relied on it, the radiologist could incur liability.

Risk management can minimize the likelihood of incurring medical malpractice lawsuits involving curbstone consultations, maximize the chances of a successful defense if such a suit is filed, and enhance patient care.

The following risk management pointers will help radiologists meet these objectives:


References
Top
Introduction
The Case
Medical—Legal Aspects
Discussion
Curbstone Consultation and the...
Summary and Risk Management
References
 

  1. Merriam-Webster's collegiate dictionary, 10th ed. Springfield, MA: Merriam-Webster, 1993:284
  2. Golub RM. Curbside consultations and the viaduct effect. JAMA 1998;280:929 -930[Free Full Text]
  3. Keating NL, Zaslavsky AM, Ayanian JZ. Physicians' experiences and beliefs regarding informal consultation. JAMA 1998;280:900 -904[Abstract/Free Full Text]
  4. Kuo D, Gifford DR, Stein MD. Curbstone consultation practices and attitudes among primary care physicians and medical subspecialists. JAMA 1998;280:905 -909[Abstract/Free Full Text]
  5. Berlin L. The good samaritan. AJR 2001;177:529 -534[Free Full Text]
  6. Howard ML. Physician-patient relationship. In: Sanbar SS, Gibofsky A, Firestone MH, LeBlang TR, eds. Legal medicine, 4th ed. St. Louis: Mosby, 1998:247 -254
  7. Berlin L. Are radiologists contracted by third parties to interpret radiographs liable for not communicating results directly to patients? AJR 2002;178:27 -33[Free Full Text]
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