Doctors at Bartlett Regional Hospital, seen here in this January 2021 photo, often call consultants and specialist for medical advice, but a supreme court case out of Minnesota could make that dynamic legally questionable. (Ben Hohenstatt / Juneau Empire File)

Doctors at Bartlett Regional Hospital, seen here in this January 2021 photo, often call consultants and specialist for medical advice, but a supreme court case out of Minnesota could make that dynamic legally questionable. (Ben Hohenstatt / Juneau Empire File)

Bill seeks to shield doctors from liability when consulting

‘Curbside consultations’ are protected under proposal.

The Alaska State Senate passed a bill Monday meant to protect medical professionals’ ability to share information without liability for malpractice lawsuits.

A supreme court decision in Minnesota in 2019 found that there doesn’t have to be a direct doctor-patient relationship for a malpractice suit to occur, meaning that doctors who give advice to other doctors could potentially be liable for damages for the actions of other medical providers.

The decision concerns unpaid consultations when one medical provider calls another seeking advice on a patient, free of charge. The Minnesota case found a person may sue a physician for malpractice even if that person was not a patient of the physician if the harm suffered by the person was a “reasonably foreseeable consequence” of the physician’s actions, according to the Minnesota Medical Association.

“Groups of doctors were being told that they should stop doing these free consults for other doctors, which would be a terrible disruption to how Alaskans get health care,” said Sen. Jesse Kiehl, D-Juneau, who sponsored a bill that would protect Alaska doctors from that kind of liability.

Minnesota’s laws don’t necessarily have an impact on Alaska, Kiehl said, but the law sets a precedent that could be cited by other U.S. courts in the future.

In testimony to the Senate Health and Social Services Committee in February, representatives from the Alaska Heart and Vascular Institute said the organization’s insurer had urged caution about using such consultations. At a Feb. 16, committee meeting, Dr. Steven Compton told lawmakers the insurer said consultants could give general information but any specific advice given might be liable for malpractice.

But critics of the decision say that such information sharing is critical to how medicine gets practiced, and the expanded liability would discourage that kind of behavior. The Minnesota Medical Association said the change may expose health professionals to malpractice risk for a variety of actions that were previously protected including unbilled consultations.

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“Expanding physician liability outside of the physician-patient relationship would damage physician collaboration and informal consultation and ultimately harm patients,” MMA argued to the court.

Alaska’s vast size made the need for consultations that much more important, Pam Ventgen, executive director of the Alaska State Medical Association wrote in a letter to lawmakers.

Since a consulted professional has no access to records, no contact with the patient, no way to physically examine the patient and no chart, that leaves the consulting provider vulnerable and exposed if a lawsuit is filed, the letter said.

“This vulnerability is causing questions to be asked about the viability of a practice which leaves the practitioner exposed to suit,” Ventgen said.

But doctors refer to outside consultants and experts all the time, said Dr. Nathan Peirmann, emergency medicine physician at Bartlett Regional Hospital, and need to be able to access the best information available. Furthermore, he said, traveling long distances to see specialists in-person could have negative impacts on a patient’s health.

Kiehl said his bill was pre-emptive, and meant to ensure doctors in Alaska could share information with confidence. He emphasized that the bill still allowed for patients who’ve been harmed to seek damages in court, but merely protected medical providers’ ability to consult with one another. The bill recently passed unanimously out of the Senate after other medical professions such as chiropractors were added in committee. The bill was sent to the House and will be heard in that body’s committees.

“It’s not that we fear litigation, that’s part of what happens when we practice,” Peirmann said. “There’s a lot of information and a lot of information sharing. (Doctors) rely on people who you can get expert advice from.”

• Contact reporter Peter Segall at psegall@juneauempire.com. Follow him on Twitter at @SegallJnuEmpire.

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