Forensic Corner; Stay Alert: Federal and State
Statutes Impact Your Practice
Lee H. Haller, M.D.
There is no escaping the long arm of the law in one's
professional life. Federal and state statutes regulate
everyone's practice of medicine. Therefore, as I recommended
in a previous column, it behooves the prudent child
and adolescent psychiatrist to study the existing statutes
upon entering practice in a new jurisdiction and to
keep abreast of the changes which occur during each
annual legislative session (which can be accomplished
by reading the periodic publications of the local psychiatric
and medical societies).
Although one would wish this to be sufficient, this
turns out not to be the case, because one's practice
patterns also must be adjusted to comply with relevant
case law (which results from litigation). An example
of this is the now famous Tarasoff case which became
law in California by virtue of the holdings of that
state's supreme court. Subsequent to the court's ruling,
every therapist in that state was bound by it. This
was true regardless of whether the therapist was aware
of the ruling or not.
As is patently obvious from this example, the wise
child and adolescent psychiatrist needs to take the
time to learn about the legal side of practice. By doing
so, (s)he not only decreases the likelihood of being
the object of litigation or medical board review, but
also may learn ways of assisting one's patients.
When I present case law synopses or newly enacted statutes
in this column, my purpose is to assist you in this
learning process. Not all the material that is presented
will be of relevance to you directly, because you don't
practice in the jurisdiction from whence the statutory
or case law comes. Nevertheless, the cases merit reading
because they may well represent a trend and, therefore,
a similar case or law could soon be forthcoming in your
jurisdiction.
Here is an example, John Doe filed suit against his
employer for violation of his right to privacy because,
during a routine audit of the agency's self-insured
pharmaceutical health plan, officers of his company
learned that he had filled prescriptions for medications
which were used only to treat AIDS. Whereas the trial
court found in his favor, the Third Circuit Court reversed
and the Supreme Court refused to review the decision.
The rationale of the appellate court was that the employer's
need to monitor the health plan outweighed the employee's
right to privacy.
The significance of this decision is obvious: we, as
physicians, are potentially contributing to the risk
of a patient's privacy right being violated every time
we write a prescription intended for processing by a
mail-order pharmacy run by the patient's employer. Now
that we know this, do we have a new "duty to warn" a
patient that their own, their spouse, or child's privacy
may be violated by virtue of using their employer's
mail order prescription plan? If not a legal duty, do
we have an ethical duty? I welcome your comments on
this issue.
Finally, I again repeat my invitation for all of you
who have forensic expertise to write to me, include
your forensic training and experience, and whether you
belong to any forensic groups (e.g. AAPL, AAFS). I am
hoping to compile a comprehensive list as soon as possible
so, at least, we can know about each other.
Dr. Haller is in the private practice of forensic Psychiatry
in Potomac, Maryland
AACAP
News/March-April 1997 |
