Written by Dr. MedLaw

Q: When I am covering after-hours or on the weekend I often get consultation requests from our residents doing a rotation at a small affiliated hospital which does not have psychiatry attendings available during these times. Contacting the on-call attending here is the standard alternative.  The resident presents the case as they would at rounds and then we discuss their question and I advise them how to proceed.  There is no request for me to come in to see the patient and I actually could not do so since I am working at my own place and do not have admitting privileges at the other facility. I cannot put a note in the patient’s chart at the other hospital. The resident is supposed to do so and to record the consultation, naming me, in that. The problem is that this way of doing things was set up informally to fill a need but was never really worked out in terms of the liability for the doctor in my position. Does the patient become my patient as well when I consult and, if they do, what about the resident getting something wrong and me being held responsible without a way to document what I really said?

A: Let’s start with the fact that rather than a “curbside” about general issues of care this is a true consultation sought because of your expert status relative to the questioner. Providing a telephone consultation in any setting in which you know that your opinion will be relied upon by the questioner, and all the moreso when it is part of an on-call duty or when you know that the questioner is still in training, then establishes a physician-patient relationship even if you never examine the patient or are even in the same location with them.

In this setting that relationship will extend over the scope of the consultation but not beyond it into ongoing care, which will be taken over by the staff that comes in the next day. However, while it is active you are under a duty of care to the patient insofar as it is reasonable under the circumstances. Here that would require getting adequate diagnostic information from the resident, making an appropriate recommendation and being available for follow-up.  You therefore want to make sure that you document the interaction with the resident to establish these points.

Since you are not able to enter that documentation into a formal record you should keep your own record of these consultations.  Although it will not be part of the chart, if it is made up of notes that are contemporaneous with your involvement in the cases (that is to say, not something that you wrote later to help yourself after a problem developed) and it is kept for all cases (not just the risky ones, which could also look post hoc self-serving) it can be admissible as evidence if you are sued later as being a record that you kept as part of your normal course of conduct. It could then also be used to “refresh the recollection” of the resident – now your co-defendant – who does not remember talking to you beyond what they wrote in their own note.

You can do this low-tech in a handwritten notebook, the authenticity of which will eventually be evident because it will be in different inks and look appropriately worn, but it is preferable to do it on an electronic device that will be time-stamped in a manner that you cannot alter and will show if any revisions were made and when.

The notes should include:

  • the date and time that you were called
  • the name and PGY status of the resident and any ID number for them
  • the name of the patient and their medical record number
  • a brief description of the discussion you had with the resident including the facts as presented by the resident, your diagnosis and your recommendations
  • a statement that you instructed the resident to contact you if there were any significant changes or if they had any further questions and that the resident agreed to do so

Of course, since this is a great deal of PHI you must maintain confidentiality.  A notebook should be in your possession or securely locked up when not in use and a device should be appropriately encrypted.