• Track 45:03

In the case of Greenberg v. Greenberg, the defendant Dr. Greenberg was a practicing physician in Michigan. He was the principle shareholder in a professional corporation called Allergy Group when he retired from the practice of medicine in 1996.


A year before he retired, Dr. Greenberg's son and daughter-in-law brought suit against him in Colorado state court. They alleged that from 1965 to 1995 Dr. Greenberg committed medical negligence by prescribing and dispensing narcotics to his son. Dr. Greenberg had prescribed benzodiazepines and hydrocodone and oxycodone. The son alleged that he became addicted and physically and psychologically dependent as a result of taking these drugs.


Although the Colorado court did not address the issue, some states have regulations prohibiting the prescribing of medications to family members. In Massachusetts, the Board of Registration in Medicine has adopted the following regulation: Except in an emergency, a licensee is prohibited from prescribing Scheduled II controlled substances to a member of her immediate family.


Obviously, the reason for this prohibition is the prevention of prescribing medications on a less than objective basis. In jurisdictions with such a regulation, prescribing to family members can be the basis for disciplinary conduct.


Often, lawsuits between family members are known as friendly lawsuits. These suits are pursued when one person's negligence causes injury to a friend or family member. To recover payment for the injuries suffered, a lawsuit is initiated even though the parties are not really at odds with one another.


Dr. Greenberg's lawyers filed a motion to dismiss the case asserting that the Colorado court could not exercise jurisdiction over a Michigan doctor. The premise for their argument was that Dr. Greenberg was not licensed in Colorado and had never practiced medicine there. The plaintiffs argued that by sending them these prescriptions he had reasonably subjected himself to this jurisdiction.


The Court stated that a non-resident defendant must have certain minimum contacts with the state such that exercising jurisdiction does not violate notions of fair play. The Court stated that it must be determined if the defendant has purposefully directed his activities at residents of that state and that the litigation arises from injuries resulting from these activities. Further, the parties' actions must render it foreseeable that if an injury occurs that they would be hailed into those courts.


The Court concluded that the plaintiff's allegations in this case were sufficient to establish Colorado jurisdiction. The Michigan doctor had allegedly prescribed and dispensed controlled substances during the time the plaintiffs were residents of Colorado. Further, the lawsuit arose from injuries the son allegedly suffered from this activity. Though the defendant maintained he only prescribed medications on two occasions, the plaintiffs claimed that he had done so on 30 separate occasions. Based on the plaintiff's allegations, the Court found that exercising jurisdiction would not offend the notions of fair play and substantial justice.


The advent of telemedicine raises similar issues that will likely be addressed in future legal proceedings. There is a question of whether a physician who establishes a telemedicine relationship with an out-of-state hospital needs to be licensed in that state. Physicians establishing such a relationship must seek advice about the licensure laws and regulations of the state where the patient is actually being treated. Also, if subsequently there are allegations that the telemedicine advice was wrong, the physician might be allowed to be sued in that state. This will be particularly likely if the consultation relationship is formalized and occurs on a regular basis.


The Colorado court found sufficient contact by Dr. Greenberg with residents of Colorado to mandate that he stand trial there. The difficulty is that courts will make each jurisdictional decision on a case-by-case basis after studying the specific facts of each case. Therefore, prescribing medications through the mail is probably not a very good practice. Although there will be times when a prescription needs to be "called in" for a patient who is traveling, providers must avoid long distance relationships with minimal patient contact where prescriptions are refilled to out-of-state locations on a regular basis. If the patient is to reside for extended periods of time in another jurisdiction, physicians should recommend that patients consult a practitioner nearby. More contemporaneous visits with a physician will insure that the continued provision of medications is appropriate.

Physicians Prescribing Medicine to Family Members and Being Sued Out of State

by Attorney Frank E. Reardon  April 1998

Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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