HEALTH LAW SUPPLEMENT Summer 2012

Case appears to limit Tarasoff-type duty in New York State. In a recent case, a New York Appellate court dismissed a medical malpractice case against a psychiatrist at a voluntary in-patient facility who had been treating a patient who committed murder while out on a pass. The court held that the family of the decedent had a cause of action for negligence against the facility because it controlled the patient’s access to passes, but that the family had no cause of action against the psychiatrist for medical malpractice because mental health practitioners have no duty to the general public. This case suggests that while there may be a Tarasoff-type duty in New York State to protect specific individuals known to be endangered by patients, there is no duty to protect the public at large from dangerous patients. For example, if a patient is known to drive drunk, there is no duty to protect unidentified members of the public from harm from such a patient. As reasons for its decision, the court cited the unwillingness of mental health professionals to treat patients if they were to be held liable for any harm they might cause, and the possibility that mentally ill patients might be unnecessarily confined as a defensive measure by mental health professionals. Fox v. Marshall, 2011 Slip Opinion 062148, 8/9/2011.

Another mental health profession in New York State? A bill is being held for consideration by the New York State Assembly and Senate to create a new masters-level profession, “Rehabilitation Counselors” whose scope of practice would include “assist(ing) persons with physical, mental, developmental, cognitive and emotional disabilities to achieve their personal, career and independent living goals … through….psychological, vocational, social and behavioral interventions” including, “diagnosis and treatment planning” and “individual and group treatment interventions…” About 15 states now license Rehabilitation Counselors specifically as such, with other states licensing or certifying those with education and training in rehabilitation counseling as generic “professional counselors.”

APA issues a report on telepsychotherapy. Division 29 of the American Psychological Association in its “Report from the Task Force on Telepsychotherapy” lists each state’s requirement for temporary or guest license availability. Temporary licenses typically allow licensed psychotherapists in one state to offer therapy (including by telephone) to residents of another state for a certain limited period of time each year, often 20-30 days. Psychotherapists are usually required to seek this exemption from the other state’s licensing board. Although it offers only a temporary solution, psychotherapists who wish to offer therapy to a resident of another state, for example, an established patient who’s recently moved, may find this legal exemption suitable. See our newsletter of Summer 2009 for a general review of legal issues in teletherapy.

Handling bad online reviews. Clients have asked us how to deal with bad reviews hoping there’s a legal solution. There isn’t. We recently wrote Yelp on behalf of a client whose former patient had written a bad review, and Yelp wrote back stating (correctly) that they were essentially legally immune and would remove nothing from their site without a court order. Even if you know the identity of the complaining patient, you can’t respond directly because doing so might identify the patient as such, which would be a breach of confidentiality. Yelp and other review sites do allow you to create your own profile and on it you can explain why you can’t respond to patient complaints. Some clients have asked family, friends and ex-patients (not current patients; that’s unethical) to post positive reviews. Others have retained the services of firms like www.reputation.com who seem to be able to reduce the visibility of negative reviews.

Court rules that sanction by a licensing board cannot be an automatic bar to Medicaid eligibility. The Office of the Medicaid Inspector General (OMIG) had been automatically barring practitioners from participation in Medicaid if they had been found guilty of or pleaded no contest to, charges of professional misconduct made by a licensing board. In Koch v Sheeran, Ap Div, 4th Dept, 3/23/12, a court ruled that OMIG must perform an independent evaluation of a practitioner’s ability to safely treat Medicaid patients. The Court said it made no sense to have a licensing board sanction allow the practitioner to continue to treat patients, but then have OMIG strip the practitioner of his or her ability to treat Medicaid patients.

Medicare providers must re-validate their enrollment. The Affordable Care Act requires that Medicare providers who enrolled in Medicare before March 25, 2011 re-validate their enrollment information in the Medicare Provider Enrollment, Chain and Ownership System (PECOS) prior to March 2015. But re-validation should not be undertaken until providers are sent notices and instructions about how to re-validate using the Internet PECOS. The notices are being sent in yellow envelopes. The re-validation process is separate from enrollment updates so updates should continue to be made as necessary.

Psychologist v psychologist. One psychologist complained to the State licensing board about another psychologist, alleging that the other had harmed detainees at Guantanamo Bay. The Office of Professional Discipline (OPD) declined to investigate or prosecute because no therapist-patient relationships were implicated. The complaining psychologist then went to court to try to compel the OPD to prosecute on the grounds that the value and prestige of his license had been diminished by the alleged unethical conduct of the psychologist who had worked with the Behavioral Science Consultation Team at Guantanamo Bay. The court upheld the declination of the OPD on the basis that State board prosecutions are meant to protect the welfare of patients. Reisner v Catone, 929 NYS2d 403 (Sup Ct, NY Cty).

Bruce named a “Top Lawyer” by Long Island Pulse Magazine. In collaboration with LexisNexis Martindale-Hubbell ™, Long Island Pulse magazine selected those attorneys whose legal ability and ethical standards comply with the highest standards. Bruce was among them.

INFORMATION IN THIS NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING THE SPECIFICS OF YOUR SITUATION.

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