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You can’t hang your hat on a curbside.

May 28, 2013
 
There is nothing more annoying than the guy sitting next to you on the plane who tells you his entire medical history, including his sex-change operation and his gouty feet, all the while coughing on you.  If he asked you for advice about treating his cough, and he took your advice, and it wasn’t just a cold but lung cancer, could he sue you? 
If Mark Zuckerberg goes to Sheryl Sandburg and asks for advice in the hall (the old “oh by the way”) about the launch of a social media product, and he takes her advice, and the product tanks, does he hold her responsible and make her pay for the company losses? 
If I see a mechanic (not my personal mechanic) at the grocery store and ask him about a noise my car is making and he tells me what he thinks it is and my regular mechanic finds it’s really something different, can I sue that first mechanic?
If I have a patient with a neurologic disorder and I haven’t seen a case for a while and I ask a passing neurologist about whether or not I can use muscle relaxants, he tells me I can, I do, and the patient has prolonged muscle blockade, can the patient sue my colleague? 
If I am on call and a colleague asks me to come help in a difficult case that is going badly, and I do come help, can I get sued if the outcome is not good?
The above scenarios are all real-world examples of communication and collaboration.  These interactions occur a million times a day in business, education and health care.  In medicine we call it curbsiding.  The whole point of working togetherin this way is to combine differing levels of expertise into a cohesive whole.  There’s a reason why companies like Google put all their tech guys in one big room with no doors.  It’s to make these interactions more likely.  Informal discussions are the stuff of progress and invention.  Most of the time no one blames you if you weren’t right, because the person owns the decision and is just asking for a little input in an area he might not know as much about. 
A formal consult, as we call it in medicine, is a whole different kettle of fish.  Let’s take one of my examples.  Say Zuckerberg thinks the decision to launch this new social media product is too big to talk about in passing.  He might “consult” Sandberg.  Give her the facts then let her analyze the data, talk to the appropriate people, then make a recommendation.  This is no longer curbsiding. This is a real consultation.  Now Sandberg really IS responsible, at least in part.  If I send my patient with the neurologic disorder to a neurologist for a formal consultation and he comes back saying that I absolutely can use muscle relaxants and I do and then the patient has a prolonged block, THEN that consulting physician can be asked to take some responsibility.
For some reason, in medicine the curbside has become something it is not in any other area: actionable.  Dr. Bob Wachter, all of whose work I love, recently posted on this site about efforts to ban curbsiding.  Risk managers especially hate curbsiding, because of the litigation it exposes the curbsidee to.  Why is that?  Lawyers have taken an intrinsic part of human decision-making and interaction and made it, well, dangerous.  The minute a penalty is imposed for imparting advice, the communication shuts down.  The minute people are scared to ask for advice, the communication shuts down.  The minute your doctor thinks better of asking an expert informally what he thinks about my condition or if he thinks you need a formal consultation, the quality of your healthcare goes down.
Virtually all doctors know when to call for a full formal consultation and when a “by the way” is enough.  All doctors know not to act solely on the basis of a conversation in the elevator.  Valuable information and learning is obtained in the elevator.  We cannot let litigation and regulation shut down our conversations.
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