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Letters Medicolegal—Malpractice and Ethical Issues in Radiology. Do Curbstone Consultations Create a Doctor-Patient Relationship? QUESTION: I am a general internist and recently came across your AJR article on curbstone consultations [1]. Twenty years ago, I attended a lecture given by a lawyerethicist-physician who said, “When you seek help informally from a radiologist, go ahead and document the conversation in the medical record. This shows that you are a good doctor, and don’t worry about the legal liability of the radiologist whose advice you are documenting. Curbstone remarks by the radiologist do not constitute a relationship between the radiologist and your patient if the radiologist has not actually seen the patient. The radiologist will not be in legal jeopardy if there is a malpractice lawsuit later on.” Do you agree with these remarks? I realize that there are all sorts of nuances in radiology; for example, the radiologist with whom I’m discussing a radiologic study could be the radiologist who formally interpreted the study and whose name is on the report— which obviously does constitute a physicianpatient relationship. Or, the radiologist could be simply an associate of the radiologist who formally interpreted the study and thus not named on the report, although the associate’s name is. In this case, the “curbstoning” radiologist may give me additional information that was not included in the original report because I’m asking clinical questions and directing attention to specific areas on the images. Furthermore, on some occasions, the second radiologist with whom I’m speaking interprets the study differently from the original one. At other times, the radiologist could be looking at a study from an outside institution. What are your thoughts? DR. BERLIN’S REPLY: Your questions are fascinating. The lecturer’s advice is partly right and partly wrong. When it comes to the courts’ opinions on this subject, there are no hard and fast rules. There is no doubt that documenting curbstone discussions between colleagues shows that one is a “good
doctor.” However, whether the radiologist giving you a curbstone consultation creates a physician-patient relationship with your patient is not clear-cut. Sometimes he does, and sometimes he does not. In a previous detailed AJR article [2], I quoted a number of state appellate and supreme court decisions on this topic. Under certain conditions, the courts have found that the physician giving a curbstone consultation has created a legal relationship with the patient, and at other times, no such relationship was created. Certainly, in the context of radiology practice, it is a well-recognized principle that when patients undergo radiologic 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. Whether such a duty is established when a radiologist simply offers a curbstone opinion about a radiologic study is murky. One such case that suggests that a duty is established dealt with a cardiologist who was caring for a patient with a questionable myocardial infarction. The patient brought a copy of a coronary angiography that had been performed elsewhere and asked the cardiologist whether it should be repeated. The cardiologist replied that he was not an interventional cardiologist but would consult with one. He did, and the consulting interventional cardiologist, after quickly looking at the angiography, said it should be repeated. It was, and the patient died during the procedure. The family sued both cardiologists, claiming that the repeat angiography had been contraindicated because of the patient’s clinical condition. The appellate court in that case ruled that even though he never saw or examined the patient, the interventional cardiology consultant was liable as well as the other defendants.
In contrast, in another case a family physician 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. The pediatrician walked into the child’s room and noted that the infant was in no apparent distress, but the pediatrician did not examine the patient or review the radiographs or test results. He gave no specific advice to the family physician. The child later was diagnosed with meningitis and experienced permanent brain damage. The child’s family then filed a malpractice lawsuit against both the family physician and the curbstoning pediatrician. The pediatrician petitioned the court to be dismissed from the case, arguing that no physician-patient relationship had been established. The court agreed and upheld the dismissal of the pediatrician. 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. Generally, a physician-patient relationship does not arise when a radiologist provides general advice to a colleague on the basis of an informal request for assistance. If, however, the radiologist reviews a radiologic study when offering curbstone consultation and 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. Thus, the key question that will be asked and addressed in lawsuits involving curbstone consultations is “Did the requesting physician rely on the advice or information given by the consulting curbstone physician?” One last point: Inasmuch as each party involved in a curbstone consultation may walk away with a differing recollection of what was
AJR 2014; 202:W117 0361–803X/14/2021–W117 © American Roentgen Ray Society
AJR:202, January 2014 W117
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Letters actually said, I would advise the radiologist who gives the curbstone consultation to either generate a formal written report in the patient’s medical record if the conversation was detailed or complex or, if not, to briefly document the conversation in an informal memo that the radiologist can file and produce in the unlikely event that a year or two later he or she becomes a defendant in a medical malpractice lawsuit involving the curbstone consultation.
Leonard Berlin NorthShore University HealthSystem, Department of Radiology, Skokie Hospital, Skokie, IL; Professor of Radiology, Rush University and University of Illinois, Chicago, IL ([email protected])
DOI:10.2214/AJR.13.11805 WEB—This is a web exclusive article.
References 1. Berlin L. Curbstone consultations, malpractice and ethical issues in radiology. AJR 2011; 197:[web]W191 2. Berlin L. Curbstone consultations. AJR 2002; 178:1353–1359
F O R YO U R I N F O R M AT I O N
We invite your reply to this Medicolegal Q&A series. Send your questions and comments to the attention of AJR Q&A at [email protected]. The comprehensive and updated book, Malpractice Issues in Radiology, 3rd edition, by Leonard Berlin, is now available! For more information or to purchase a copy, see www.arrs.org.
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. This monthly column answers common professional liability questions. The legal advice provided herein is intended to be general in nature and in specific circumstances is not a substitute for formal legal opinions obtained from the reader’s personal legal counsel.
W118
AJR:202, January 2014
Letters Medicolegal—Malpractice and Ethical Issues in Radiology. Do Curbstone Consultations Create a Doctor-Patient Relationship? QUESTION: I am a general internist and recently came across your AJR article on curbstone consultations [1]. Twenty years ago, I attended a lecture given by a lawyerethicist-physician who said, “When you seek help informally from a radiologist, go ahead and document the conversation in the medical record. This shows that you are a good doctor, and don’t worry about the legal liability of the radiologist whose advice you are documenting. Curbstone remarks by the radiologist do not constitute a relationship between the radiologist and your patient if the radiologist has not actually seen the patient. The radiologist will not be in legal jeopardy if there is a malpractice lawsuit later on.” Do you agree with these remarks? I realize that there are all sorts of nuances in radiology; for example, the radiologist with whom I’m discussing a radiologic study could be the radiologist who formally interpreted the study and whose name is on the report— which obviously does constitute a physicianpatient relationship. Or, the radiologist could be simply an associate of the radiologist who formally interpreted the study and thus not named on the report, although the associate’s name is. In this case, the “curbstoning” radiologist may give me additional information that was not included in the original report because I’m asking clinical questions and directing attention to specific areas on the images. Furthermore, on some occasions, the second radiologist with whom I’m speaking interprets the study differently from the original one. At other times, the radiologist could be looking at a study from an outside institution. What are your thoughts? DR. BERLIN’S REPLY: Your questions are fascinating. The lecturer’s advice is partly right and partly wrong. When it comes to the courts’ opinions on this subject, there are no hard and fast rules. There is no doubt that documenting curbstone discussions between colleagues shows that one is a “good
doctor.” However, whether the radiologist giving you a curbstone consultation creates a physician-patient relationship with your patient is not clear-cut. Sometimes he does, and sometimes he does not. In a previous detailed AJR article [2], I quoted a number of state appellate and supreme court decisions on this topic. Under certain conditions, the courts have found that the physician giving a curbstone consultation has created a legal relationship with the patient, and at other times, no such relationship was created. Certainly, in the context of radiology practice, it is a well-recognized principle that when patients undergo radiologic 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. Whether such a duty is established when a radiologist simply offers a curbstone opinion about a radiologic study is murky. One such case that suggests that a duty is established dealt with a cardiologist who was caring for a patient with a questionable myocardial infarction. The patient brought a copy of a coronary angiography that had been performed elsewhere and asked the cardiologist whether it should be repeated. The cardiologist replied that he was not an interventional cardiologist but would consult with one. He did, and the consulting interventional cardiologist, after quickly looking at the angiography, said it should be repeated. It was, and the patient died during the procedure. The family sued both cardiologists, claiming that the repeat angiography had been contraindicated because of the patient’s clinical condition. The appellate court in that case ruled that even though he never saw or examined the patient, the interventional cardiology consultant was liable as well as the other defendants.
In contrast, in another case a family physician 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. The pediatrician walked into the child’s room and noted that the infant was in no apparent distress, but the pediatrician did not examine the patient or review the radiographs or test results. He gave no specific advice to the family physician. The child later was diagnosed with meningitis and experienced permanent brain damage. The child’s family then filed a malpractice lawsuit against both the family physician and the curbstoning pediatrician. The pediatrician petitioned the court to be dismissed from the case, arguing that no physician-patient relationship had been established. The court agreed and upheld the dismissal of the pediatrician. 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. Generally, a physician-patient relationship does not arise when a radiologist provides general advice to a colleague on the basis of an informal request for assistance. If, however, the radiologist reviews a radiologic study when offering curbstone consultation and 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. Thus, the key question that will be asked and addressed in lawsuits involving curbstone consultations is “Did the requesting physician rely on the advice or information given by the consulting curbstone physician?” One last point: Inasmuch as each party involved in a curbstone consultation may walk away with a differing recollection of what was
AJR 2014; 202:W117 0361–803X/14/2021–W117 © American Roentgen Ray Society
AJR:202, January 2014 W117
Downloaded from www.ajronline.org by Univeristy of Brighton on 07/04/14 from IP address 194.81.203.94. Copyright ARRS. For personal use only; all rights reserved
Letters actually said, I would advise the radiologist who gives the curbstone consultation to either generate a formal written report in the patient’s medical record if the conversation was detailed or complex or, if not, to briefly document the conversation in an informal memo that the radiologist can file and produce in the unlikely event that a year or two later he or she becomes a defendant in a medical malpractice lawsuit involving the curbstone consultation.
Leonard Berlin NorthShore University HealthSystem, Department of Radiology, Skokie Hospital, Skokie, IL; Professor of Radiology, Rush University and University of Illinois, Chicago, IL ([email protected])
DOI:10.2214/AJR.13.11805 WEB—This is a web exclusive article.
References 1. Berlin L. Curbstone consultations, malpractice and ethical issues in radiology. AJR 2011; 197:[web]W191 2. Berlin L. Curbstone consultations. AJR 2002; 178:1353–1359
F O R YO U R I N F O R M AT I O N
We invite your reply to this Medicolegal Q&A series. Send your questions and comments to the attention of AJR Q&A at [email protected]. The comprehensive and updated book, Malpractice Issues in Radiology, 3rd edition, by Leonard Berlin, is now available! For more information or to purchase a copy, see www.arrs.org.
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. This monthly column answers common professional liability questions. The legal advice provided herein is intended to be general in nature and in specific circumstances is not a substitute for formal legal opinions obtained from the reader’s personal legal counsel.
W118
AJR:202, January 2014
