Online therapy is a relatively new phenomenon. After all, the internet itself has only been in use by the general public for a few decades. But in the past few years, largely due to the COVID pandemic, the practice of working remotely with a therapist has become much more common. Between the mental health issues caused or exacerbated by the pandemic, and the need for social distancing, the rise of “teletherapy” was probably inevitable.
For many people, the availability of online therapy has been a lifeline. In regions where there are relatively few therapists or counseling centers, online therapy allows people to have access to a mental health professional much sooner than they otherwise might have. It is similarly helpful for people with mobility issues, lack of transportation, or simply limited time.
Teletherapy clearly has its benefits, and research shows that outcomes are generally equivalent to face-to-face therapy. But just as with in-person therapy, there exists the potential for problems, even abuse. In some cases, misconduct by an online therapist rises to the level of medical malpractice.
When a mental health professional does something, or fails to do something, that constitutes malpractice, it may be necessary to file a lawsuit. That can be challenging enough when your therapist works in your geographic region. But how do you sue an online therapist who is located across the state, or potentially across the country? And how do you know when an online therapist has committed malpractice?
For the most part, malpractice by an online therapist is similar to any type of therapeutic malpractice. There must be a duty of care, which exists by virtue of the relationship between the therapist and the client. In order for a court to find that there has been malpractice, there must be a breach of that duty. The breach of duty must cause an injury to the client that results in damages—either economic (like lost wages or the cost of corrective treatment), non-economic (like pain and suffering), or often, both.
One potential teletherapy malpractice scenario might involve a depressed client who confides suicidal thoughts to the online therapist. At that point, the therapist would be obligated to explore further to determine the risk that the client would actually do something to harm herself. If there was a likelihood of harm, the therapist would have a duty to take measures to ensure the patient’s safety. That might involve, for instance, persuading the patient to seek hospitalization or contacting first responders.
If the online therapist ignored or downplayed the suicidal thoughts, breaching her duty, and the patient attempted suicide, there might well be a claim for therapeutic malpractice.
There are numerous other scenarios that might result in a malpractice claim, such as the development of an inappropriate or sexual relationship between the therapist and client; the two parties do not need to be in the same room for a harmful dynamic to develop. In short, just as a beneficial therapeutic relationship can unfold remotely, so can a harmful one.
There are also circumstances unique to teletherapy that can result in legal issues other than malpractice claims. For example, one of the best-known teletherapy platforms, BetterHelp, was the subject of multiple federal class action cases for their improper sharing of user data, including sensitive mental health information, with third parties.
Many, if not most, states require a therapist to be licensed in the state where the therapy takes place, and that is considered to be the state where the client is located. It is the responsibility of the therapist to understand the requirements of her own state and that in which her client is present. Failing to do so may not be malpractice, but could violate professional ethics.
It is often difficult for people who are receiving mental health treatment to discern whether their therapist acted appropriately or not. It’s common for clients to blame themselves when something goes wrong in therapy or teletherapy. Therefore, it is important to get the perspective of an objective third party with experience in these matters.
If you think your therapist might have done something that constitutes malpractice and you were harmed, speak with an experienced medical malpractice attorney as soon as possible. If you don’t have a viable claim, an experienced attorney will let you know. These cases are challenging and a lawyer will not agree to undertake a case that does not have a reasonable chance of success.
On the other hand, if you do have a worthwhile claim and do not file it in a timely fashion, your claim could be barred by the statute of limitations. It is always best to talk to an experienced therapy malpractice attorney to explore your options.
There is one more reason to speak with an experienced attorney if you think your online therapist might have committed malpractice. Because online therapy is relatively new, the law is still catching up with reality. An experienced malpractice attorney will be able to inform you of new developments in the law that could affect your rights.
To learn more about teletherapy malpractice, contact The Fraser Law Firm P.C. to schedule a consultation.
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