Jacqueline Melanos, J.D.: Knowledge of state law is imperative before
providing psychiatric services electronically.
While psychiatry is part of the movement to bring medicine to the masses
via computer, communicating with patients via e-mail and the Internet can also
increase psychiatrists' exposure to liability for a variety of reasons, say
The fact that electronic communication can bridge great distances and
instantly bring information to patients is the very thing that makes it so
risky, according to Jacqueline Melonas, J.D., R.N., M.S., vice president of
risk management at Professional Risk Management Services, manager of the
APA-endorsed Psychiatrists' Professional Liability Insurance Program.
"The practice of medicine is controlled by physical
jurisdictions," Melonas told Psychiatric News in a recent
interview. "Electronic communications, however, cross jurisdictional
Practicing across state lines—dispensing medical advice to a person
in another state, for instance—may raise problems with licensing
restrictions; most states require physicians to be fully licensed in a state
in order to treat individuals in that state.
According to Melonas, some states explicitly prohibit unlicensed
telemedicine, and some have created "a limited exception to licensing
for the purposes of telemedicine." She noted, however, that it is not
clear whether such telemedicine laws apply directly to
cybermedicine—providing medical services via e-mail or the Internet.
Telemedicine refers to the provision of health care services from a distance
using audio, video, and computer technology. Often, physicians use
videoconferencing to diagnose an illness and provide medical treatment.
Trying to determine which laws apply when the physician and his or her
patient are located in different states is not easy, according to Melonas.
States have unique laws pertaining to a number of critical topics, such as
documentation requirements, duty to warn of a dangerous patient, duty to
report abuse, requirements for informed consent to treatment, and commitment
When psychiatrist and patient are in different states, "it may not be
clear which state's laws would prevail, should the laws differ," Melonas
In addition, professional liability insurance companies cannot provide
insurance coverage for the unauthorized practice of medicine, which would
include practicing in violation of another state's laws or regulations.
"To avoid or minimize the risks of practicing across state lines, if
a psychiatrist decides to provide some treatment via e-mail or the Internet,
it should only be done with patients located in the state in which he or she
is licensed to practice," Melonas said.
E-mailing a patient who is out of state on an infrequent basis, especially
for an administrative purpose, can be most closely compared with telephoning a
patient who is out of state, she added.
Talking to a patient who is in a state where the doctor is not licensed may
not be a problem in some instances. For example, a patient who is on vacation
may need to reach his or her doctor about a medication side effect.
However, a psychiatrist who is conducting psychotherapy via phone with a
patient who is in a state where the doctor is not licensed could run afoul of
state licensing requirements.
At a minimum, psychiatrists have a duty to meet the standard of care when
treating patients. The standard of care is not a clinical concept, but a legal
Although its exact definition differs from state to state, it can be viewed
as "the degree of skill, care, and diligence exercised by members of the
same profession or specialty practicing in light of the present state of
medical science," according to Melonas.
Does dispensing medical advice or information to a patient on the other end
of a computer meet the standard of care? Or can a psychiatrist be held liable
for misinformation located on a Web site to which he or she is linked?"
These questions have not yet been answered," Melonas said.
Problems may arise when psychiatrists attempt to assess a patient via
e-mail, since they can't see or hear the patient. "Without the ability
to interpret facial expressions, body language, or vocal intonations, the
psychiatrist is at a disadvantage when assessing the patient's
condition," she explained.
While speed and convenience are major reasons psychiatrists may want to use
e-mail to communicate with patients, e-mail could compromise a patient's
privacy and cause other problems.
For instance, e-mail messages, like postcards, can be read by others as
they pass from sender to recipient, Melonas noted.
In addition, e-mail messages with sensitive information can be misaddressed
and sent to the wrong person, inadvertently forwarded to others, or left on a
computer screen for others to see.
Melonas also pointed out that e-mail messages from doctor to patient and
vice versa can be delayed from hours to days due to computer or network
glitches, which can negatively impact treatment.
She recommended that psychiatrists who communicate with patients via e-mail
first obtain a patient's written informed consent to do so. "The
informed consent discussion should include an explanation of the benefits,
potential risks, and limitations, such as detailed information on what topics
will and will not be included in e-mail," Melonas said.
Prescription refill requests, test results, appointment reminders,
questions regarding insurance, and routine follow-up inquiries may be
appropriate for inclusion in e-mail messages.
"Cybermedicine," or treating patients via the Internet or
e-mail, is the riskiest activity in which psychiatrists can engage, and those
who do should contact their professional liability insurance underwriter to
discuss coverage implications, Melonas pointed out.
For example, if a psychiatrist sets up an appointment with a patient, and
the patient sends an e-mail asking the psychiatrist to make the appointment
much sooner, "what is the psychiatrist's responsibility to find out why
the patient wants an earlier appointment?" Melonas asked, "and is
it adequate to make this determination and clinical assessment via
These questions get to the heart of another, more central question, she
said—whether cybermedicine meets the standard of care.
Electronic prescribing is one area of concern—state licensing boards
usually require the physician to have personal interaction with the patient to
meet the standard of care, and "more and more states are taking
disciplinary actions against physicians who prescribe over the Internet for
patients whom they have never personally examined," she said.
Even a seemingly innocuous activity such as scheduling appointments via the
Internet can be problematic. "One psychiatrist's office had patients
making appointments directly into the scheduling software from the Internet
for several months before realizing that patients could see the entire
schedule of appointments, including names, dates, and times—not just
their own," Melonas said.
She pointed out as well that certain Internet activities pose very little
risk of liability to practicing psychiatrists. For instance, psychiatrists may
post general information about their practice, such as methods of treatment
and office hours, or provide general information about mental health, as long
as the information is accurate.
Guidelines are available for physicians who want to learn more about
communicating electronically with patients. "Guidelines for
Physician-Patient Electronic Communications" is posted on the Web at<www.ama-assn.org>
and "Model Guidelines for the Appropriate Use of the Internet in Medical
Practice" is posted at<www.fsmb.org>.
More information about risk management for psychiatrists is posted at<www.prms.com>.▪