COMMENTARY

Malpractice Dangers for Psychiatrists

O. Brandt Caudill, Jr, Esq

Disclosures

December 29, 2009

In This Article

The New Malpractice Risks for Internet Therapy

One area that will likely become more substantial in the near future involves providing medical and psychotherapy services through the Internet and over the telephone. Some psychiatrists provide such services, and a number of articles have documented the success of telephone therapy. The issue with telephone and internet services is whether it constitutes unlicensed practice in the state in which the services are received.

A 2007 California case raises serious issues about the potential malpractice exposure of psychiatrists who participate in Internet prescription. In 1 case, the California appellate court upheld the criminal conviction of a Colorado physician who prescribed fluoxetine to a California resident who committed suicide by means of carbon monoxide poisoning. At the time of the suicide, he was intoxicated with alcohol and had a detectable amount of fluoxetine in his blood.

The psychiatrist was charged with unlicensed practice of medicine in California, which is a felony, and was convicted. On appeal, he challenged the jurisdiction and claimed that California's decision would deter physicians outside of California from providing resident medical assistance over the Internet. The court of appeal rejected the argument and stated: "Given the absence at this time of any significant national or international effort to ensure the widespread and growing use of the Internet to sell drugs without a prescription made on the basis of good faith and on medical examination by a physician licensed in the state in which the patient resides (without any prescription at all), the denial of state jurisdiction to punish the practice would provide the unscrupulous physician to engage in even greater freedom to do so than they already possess."

In Golob v Arizona Medical Board, the court of appeal upheld the Arizona medical Board to create a censure against Dr. Golob for issuing prescriptions over the Internet without conducting a physical examination of the individual seeking them. Because Dr. Golob was an Arizona licensed physician, the court of appeal rejected Dr. Golob's argument that the board would only have jurisdiction if the patient for whom the prescription was written was located in Arizona.

Dr. Golob acknowledged that she had treated patients from all 50 states, as well as Europe and the Caribbean. The court of appeal concluded that the Board had proven that Dr. Golob deviated from the requisite standard of care by prescribing medication over the Internet without a psychiatrist-patient relationship with the person who received the medication.

Thus, a psychiatrist engaged in providing either psychotherapy or medication prescription over the Internet may unwillingly subject him- or herself to criminal prosecution in a state in which he or she is not licensed and/or discipline in the state in which he or she is licensed.

In conclusion, in today's litigious times, it is particularly important for psychiatrists to be conscious of the different areas that can lead to lawsuits to minimize the risk that lawsuits will materialize.

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