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At Your Defense

At Your Defense

Liabilities EPs Should Avoid in Telepsychiatry

Reyes, Carlo MD, JD

Author Information
doi: 10.1097/01.EEM.0000473177.00475.2a

    Imagine, if you will, that you medically cleared a suicidal patient, and then obtained a psychiatric consult via telemedicine. The ED nurse wheels the telemedicine robot into your patient's room, and the telepsychiatrist assesses the patient over an Internet video feed, places your patient on a danger-to-self hold, and arranges transfer to a nearby inpatient psych facility. Voila!

    The proposed benefits of emergency telepsychiatry are enticing. Hospitals look to emergency telepsychiatry as the panacea for poor access to mental health services, hoping to provide ED patients with an immediate psychiatric evaluation and to reduce ED crowding in the process. Emergency telepsychiatry is alluring, but emergency physicians should proceed with a healthy dose of caution.

    We've learned from prior failures. The pneumonia core measure immediately comes to mind; it forced EPs to order antibiotics and blood cultures hastily, sometimes at the expense of the patient. I have similar concerns about our obsession over ED metrics, such as the door-to-order times that cause EPs to order too much or the time-to-sepsis-antibiotics, which may lead to the overutilization of broad-spectrum antibiotics, but these topics are for another day.

    Telepsych groups use metrics to demonstrate proof-of-concept by showing reduced time-to-evaluation and time-to-disposition of psychiatric patients. North Carolina's state-wide telepsychiatry program, for example, reduced the length of stay of emergency department patients waiting for psychiatric services from 48 hours to 22.5 hours. (North Caroina Center for Public Policy Research, March 2014; But the devil is in the details.

    Telepsychiatrist Liability

    Emergency telepsychiatry comes with its own attendant medical-legal and regulatory pitfalls. Each state governs the manner in which an emergency psychiatric evaluation can be conducted. Some states have documentation requirements from the telepsychiatrist and the emergency physician; others require a coordinated mental health evaluation between the telepsychiatrist at the remote site and the nurse and emergency physician at the originating site.

    Telepsychiatry groups that fail to adhere to a state's particular telemedicine requirements subject the hospital or EP to regulatory sanctions, or worse — exclusion from federally funded health programs. States that prohibit the corporate practice of medicine may require a telepsychiatry group to be wholly owned by licensed physicians in the state in which they remotely practice.

    The good news for EPs is that telepsychiatrists are on the hook for their patient assessments because a telephonic evaluation establishes a physician-patient relationship. The appellate court decision in White v. Harris (2011) concluded that a telepsychiatrist's patient evaluation via live video feed was sufficient to make the psychiatrist liable for any negligence that caused the patient harm. The telepsychiatrist in the White case made recommendations to the treatment team, and the teenage patient committed suicide after he was released. This ruling should underscore the important fact that the disposition decision is in the domain of the telepsychiatrist.

    From Diagnosis to Treatment

    Telepsychiatry would be pointless without a viable treatment plan that includes medication management and a definitive disposition that is expedited by the telepsychiatry visit. Regulatory and medical-legal problems arise, however, when telepsychiatrists prescribe medications remotely, especially if medication management crosses state lines. Telepsychiatrists should be on the medical staff of the hospital receiving telemedicine services to avoid charges alleging the unlicensed practice of medicine, and they should hold active medical licenses in that state.

    Four years before the White decision, in Hageseth v. Superior Court (2007), a physician prescribed fluoxetine for an online customer who later committed suicide. The physician was licensed to practice medicine in Colorado, while the patient was from California. The court in Hageseth held that the physician, unlicensed to practice in the state where the patient lived, engaged in the unlicensed practice of medicine by providing the patient with a prescription.

    A telepsychiatrist could avoid prescribing all together and make medication recommendations for the EP to follow, making the risk of medication management mutually shared. Documentation in that case should clearly demonstrate that the EP relied on the expertise of the telepsychiatrist regarding medication management.

    Holds and Evaluations

    The full benefit of telepsychiatry can only be realized in the emergency department if telepsychiatrists write holds and perform daily assessments of psych patients. Complications may arise when telepsychiatrists write holds, however, if the telepsychiatrist is not familiar with the requirements of the particular state's involuntary commitment statute. These are more hurdles than barriers because hospitals should expect that telepsychiatry programs fully understand the involuntary hold laws of the state in which they remotely practice. Importantly, this approach would avoid problems of conflicting recommendations between the telepsychiatrist and the on-site crisis team member.

    Another potential benefit to the ED and its patients is the definitive disposition to a psychiatric facility arranged by the telepsychiatry program. This is an operational issue, and may be the reason statewide telepsychiatry programs like those in North Carolina and Hawaii experienced such success in decreasing ED length of stay. To put it bluntly, what good is telepsychiatry if it can't get my patient a psych bed?

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