Telemental Health Malpractice: A Prescription for Legal Action

Stimulants and SSRIs are frequently overprescribed, particularly through telemental health services. A quick search for 'SSRI prescription' reveals numerous sponsored links offering instant prescriptions or refills after brief 15-minute consultations. This approach raises concerns about the adequacy of patient evaluations. Medical professionals should thoroughly assess a patient’s needs before prescribing medication, ensuring it is truly necessary. In many cases, telemental health providers appear to preemptively decide on a prescription, tailoring the patient’s assessment to justify the use of SSRIs and stimulants. Done and Cerebral, telehealth startups, were caught in this scheme. The Justice Department alleges that executives at Done conspired to provide easy access to stimulants, such as adderall, to patients - then bill insurance for these medications. A lawsuit in California state court alleged that Cerebral conspired to bolster customer retention by prescribing stimulants to 100% of patients diagnosed with ADHD. Cerebral grossly violated a reasonable standard of care for patients using their service. Former vice president of product and engineering at Cerebral turned whistleblower, Matthew Truebe, was told by Cerebral CEO Kyle Robertson to invest nothing into building compliance or patient safety, and instead focus on customer retention. With Cerebral’s 30-minute patient evaluations, there was simply not enough time to adequately diagnose patients with ADHD, depression, anxiety, etc. This isn’t just unique to Cerebral as well. There are evaluation consultations that can last less than 15 minutes in which a medical professional is authorized to prescribe a cocktail of stimulants or SSRIs. Although some claim that these evaluations can be administered in 15 minutes, I find it hard to believe that someone with a complex history of presumed mental health issues or traumatic experiences can have their pharmaceutical needs summed up in such a brief period of time. This overprescription epidemic has consequences as well, serious ones. People have felt serious side effects by suffering from exacerbated negative mental health issues through the hasty prescription of SSRIs or stimulants. There needs to be accountability and oversight of these services, and that starts with medical malpractice lawsuits.

Above are the search results for ‘SSRI prescription’.

A physician doesn’t need physical contact with a patient for a relationship to be established and for the physician to owe the patient a duty of care. Why? A doctor-patient relationship has been established because they have taken affirmative action to treat a patient’s illness and prescribed a course of treatment. If this doctor-patient relationship is violated, this constitutes a breach of duty and opens the grounds for a medical malpractice lawsuit. This can occur through a multitude of reasons in telehealth such as: misdiagnosis, prescribing or administering the wrong medication, not considering contraindications, and lack of informed consent or not properly discussing side effects. These acts of negligence are particularly pervasive in telemental health because the doctor cannot see you in person, and there is often not enough protocol for patient due diligence on behalf of providers in telemental health appointments. There is an impersonal detachment in telemental health practice in which providers can often not get the full picture of a patient’s story and subsequent needs through treatment. This detachment runs the risk of providers missing key information, not fully reading questionnaire forms, and missing important medical red flags or contraindications for a prescription. I’m sure that these factors are also wildly exacerbated by the fact that many of these consultations with online mental health professionals last such a brief period of time. A code of conduct needs to be established in medical malpractice lawsuits in order to prove that there was a deviation of normative care for the patient. If a plaintiff can prove that a telemental health provider or service deviated from this standard duty of care, then this strengthens their case substantially. In a litany of these telemental health appointments, it can be reasoned that a deviation of standard care can be proven if an appointment is hasty, doesn’t consider the prior mentioned criteria, and a course of treatment is pursued that doesn’t portend to the needs of a patient, resulting in an injury. 

There needs to be a causal link established between this dereliction of duty on behalf of the provider and the sustained injury. These injuries are often physically invisible as these are injuries to the function of the brain. There also needs to be a clear injury for which patients can seek compensation. Compensatory damages for economic loss can be sought if it pertains to the injury. This includes past and future medical costs, out-of-pocket costs related to the injury, and lost wages. Non-economic damages for pain and suffering can also be sought, as well as punitive damages which are designed to punish the offending provider and prevent other providers from making a similar decision. The collection of these facets of a malpractice case depend on the relevant state caps in which legal action is being pursued. 

Accountability of the telemental health industry will not occur unless serious punitive damages are levied against these negligent providers. Although many of these providers are put under pressure by companies like Cerebral and Done to hash out prescriptions, it is a breach of their duty to hastily get medication to patients without a serious and appropriate evaluation of their mental health needs. These awarded damages will set an example to other providers and services that it is antithetical and not acceptable to an appropriate standard of care to needlessly prescribe stimulants and SSRIs that yield serious side effects. If taken by the wrong patient, these drugs can cause horrible side effects such as dissociation, seizures, suicidal ideation, panic attacks, insomnia, reduced sexual desire, etc. The worst part of all of this is that children and adolescents are being prescribed these medications in such a hasty and inappropriate fashion as well. These medications can have a dire effects on growing brains such as suicidal ideation, social isolation, self harm, and agitated and impulsive behavior. Currently, there is a lack of literature surrounding the long-term effects of psychotropic medications among children and adolescents. We just don’t know the full scope of damage being done by the overprescription of psychotropic medications.

Telemedicine should not be run in a fashion similar to your typical startup - move fast and break things. It is disgusting that a company like Cerebral would expense the needs of a patient to support the bottom line. Expanding as fast as possible through the rapid prescription of drugs is deplorable and needs to be punished through every available legal avenue. This approach to business has serious consequences in healthcare because it is putting a conclusion first, then retrofitting the facts to support a narrative. Practices such as marketing and political punditry employ this method. However, that methodology is antithetical to a reasonable and appropriate standard of care on behalf of a medical provider. The practice of unnecessary and overprescription of SSRIs and stimulants is going to have dire consequences for generations to come. It’s hard not to conclude that the overprescription of these drugs has played a serious hand in the current mental health crisis faced by today’s youth, as well as the populace at large. Unless an onslaught of medical malpractice lawsuits are waged against negligent telemental health providers and services such as Done and Cerebral, then this overprescription crisis will continue to persist.