Legal liability of an online curbside consultation

These days, physicians are getting informal consultations (curbside consults) and "second opinion" feedback from other physicians by discussing patient care on closed, restricted online physician-only communities like Doximity. What is the legal liability of discussing a patient and getting input from physicians who have never seen or examined the patient?

According to this document from the University of Tennessee Health Science Center:

Some states have recognized that imposing liability for giving an informal opinion would have a chilling effect on the collegiality among physicians and, in the long term, have negative impact on patient care. Thus, a "curbside consultation" with another physician does not create a physician-patient relationship and, therefore, imposes no duty on the physician who informally shares his or her expertise with a colleague. Tennessee has yet to accept or reject the concept of a "curbside consultation." To the extent a physician affirmatively participates in the treatment or diagnosis, as opposed to expressing an opinion, Tennessee is likely to find a physician-patient relationship, even though the consulting physician did not examine the patient. See, Kelley v. Middle Tennessee Emergency Physicians, P.C., 133 S.W.3d 587 (Tenn. 2004).

In a 2003 article from Family Medicine (Fam Med 2003;35(7):476-81.), the authors write:

Courts have consistently ruled that no physician-patientrelationship exists between a consultant and the patient who is the focus of the informal consultation. In the absence of such a relationship, the courts have found no groundsfor a claim of malpractice.Malpractice risks associatedwith informal consultation appearto be minimal, regardless of the method of communication. While “informal consultation” is not a term used by the courts, the courts have applied a consistent set of criteria that help define the legal parameters of this activity.

The Doctors Company has an article written by Susan Shepard, MSN, MA, RN, director, patient safety education, and this article includes more information pertaining to the potential medical malpractice litigation risks associated with curbside consults. She writes:

Q: What are the legal issues raised by curbside consultations?
A: In a traditional face-to-face curbside consultation (as opposed to an electronic or written consultation), if an injury occurs to the patient and the patient can prove that the consult was the proximate cause of the injury, the physician who was consulted could also be named in the lawsuit.

There must be clear communication between the physicians that clarifies the nature of the attendant physician’s inquiry. In other words, if the conversation leads the attendant physician to rely on the consulted physician’s response when making a treatment decision and the patient suffers harm, there could be liability for both physicians. The legal questions are “was there a physician-patient relationship between the consulted physician and the patient” and “did the consulted physician owe a duty of due care to the other physician’s patient?”

So, where does this put us in 2013? If you're discussing a patient case within a closed, restricted online community? Will a patient be able to prove that the informal consultation led to injury?