In this episode, hosts Brad and Michael share the story of a Harvard-trained psychiatrist who used the Twitch platform to tackle mental health challenges in the gaming community. Tune in as we explore the legal and ethical considerations that arise when professionals engage with the public online, including social media. Learn how to navigate the physician-patient relationship, understanding when it is formalized, and gain insights on setting boundaries, managing risks, and maintaining compliance while connecting with your audience.
Listen to the full episode using the player below, or by visiting one of the links below. Contact ByrdAdatto if you have any questions or would like to learn more.
Trigger Warning: This episode discusses sensitive topics related to mental health which may be distressing to some listeners.
Transcript
*The below transcript has been edited for readability.
Intro: [00:00:00] Welcome to Legal 123s with ByrdAdatto. Legal issues simplified through real client stories and real world experiences, creating simplicity in 3, 2, 1.
Brad: Welcome back to another episode of Legal 123s with ByrdAdatto. I’m your host, Brad Adatto, my co-host, Michael Byrd.
Michael: This is a business and health care law firm. We meet a lot of interesting people and learn their amazing stories. This season’s theme is Compliance Fundamentals. We’ll take real client stories, we’ll scrub their names to protect confidentiality, and these stories will be built around navigating compliance obstacles in the business of health care, Brad.
Brad: Very nice, Michael. And before we keep rolling for those, watching some TV land, you might notice that we look very festive today. That’s because as we’re recording it, today is an ugly sweater day. And I think, Michael, you’re winning.
Michael: Yeah. I mean, I was going to say, I didn’t have any ugly sweaters, so I just wore one of my normal ones.
Brad: Oh, never mind. I feel really bad. [00:01:00] Never mind. Well, since we’re getting off ugly sweater talk, let’s get back to our theme about compliance and we’ll be talking about compliance a lot this season, but for those that don’t know Michael, what does that mean?
Michael: It’s a broad word. It’s used to capture all the state and federal laws that govern the practice of medicine or other regulatory laws that govern health care practices. Health care, as you know, is one of the most heavily regulated industries in the United States. And so, being in compliance means that you’re running your practice in line with these various laws.
Brad: Yes. And we often say compliance is not stagnant.
Michael: Yeah. There’s a misconception that there’s a kind of a list, check the box, you do this, you do that, you’re good to go. That can get a business in trouble. We talk about compliance drift all the time where you can at any moment in time, be [00:02:00] compliant and then take your eye off the ball and you just kind of one, change in process, one, change in the practice and the people and you just kind of veer off course and create risk for your business.
Brad: All right. Michael, what opening store do you have for today?
Michael: Curious Brad. Have you taken a trip to Japan?
Brad: Nope. The furthest west I guess I’ve ever gone is to Hawaii, but I do plan, maybe make that journey one day. Why?
Michael: Well, I keep bumping into people that are going or have just gone to Japan. It seems like it’s the hot new destination, at least for overseas travel, and so it’s sparking some curiosity.
Brad: I’ve had actually some family members and friends actually were in Japan at the exact same time, randomly over the summer.
Michael: Well, a few of the things that I’ve heard kind of consistently when I’ve caught up with people who have [00:03:00] gone is number one, it’s beautiful, it feels like you’re in another world.
Brad: It’s like another country?
Michael: Well, no, another world. You are in another country. And that it’s shockingly clean everywhere. No trash. In fact one person told me that it’s like five years in jail or something like that if you’ve drop a cigarette butt on the ground. I don’t know if that’s true or not, by the way, I haven’t looked up laws of Japan yet, but it was just like I guess, it made sense a little bit considering how clean everyone described it living the roads.
Brad: Well, and then I heard from some other people how safe they felt while they were there. So I guess going back to that first question, are you planning to go to Japan?
Michael: Um, it’s a bucket list trip for my daughter Ellex. It’s kind of been on our list and maybe [00:04:00] after high school, big trip. I don’t know. It feels like a really big trip.
Brad: Yes, it does sounds like a really big trip. So I guess I hope you guys all love sushi then.
Michael: Yeah, it’s a problem. I’m not a sushi fan. It’s not on the most wanted list, like condiments, but I’m not a fan, so that would have to be something I’d have to navigate. But Brad, I did read some articles recently that make me think you not only want to visit, but you might want to move there.
Brad: Me is it, I’m starting to wonder, like maybe you want to move there when you heard about the condiments, like, is Mayo against the law there? Well, anyway, why do you suspect that I want to go there? What’s there for me in Japan?
Michael: Just pause and make one thing clear. If Mayo was against the law there, I’m moving.
Brad: Okay.
Michael: But back to you. Actually, Brad, there’s an entrepreneurial opportunity for you. [00:05:00] I read an article that a coveted item in Tokyo in particular is a certain kind of handbag that you could procure and sell for a profit.
Brad: Yeah. I definitely think you have me confused with someone else, Michael. A handbag?
Michael: Yeah. Apparently Trader Joe’s tote bags that you can buy in their store. There are a couple of dollars, have become a style symbol and they sell for hundreds of dollars in Tokyo. And just think, there’s a Trader Joe’s almost a rock throw from your house. You could just swing by there, pack an extra suitcase, and you’d be off and running.
Brad: Certainly interesting. But hardly a reason for me to move to Japan.
Michael: Well, hang with me. The other thing I learned is that Japan is an aging population, AKA old like you, and have started [00:06:00] to adapt to better serve the more senior citizens. I read an article that a Japanese diaper company is actually stopping making baby diapers, and now they’re switching to a make adult versions. And I thought of you for some reason when I read that.
Brad: It makes you feel so warm and fuzzy.
Michael: So you could take all that money from your Trader Joe totes, and have a ready supply of adult diapers when you need them. And as a final thing, they are going to a four day work week.
Brad: I guess some of that sounds good. Does this Japan talk have to do anything with today’s story?
Michael: Not really. Indirectly, I guess we’ll go with that. Indirectly, the topic of our story today will make both of us feel old. It is a classic story of the modern world confronting old laws written many years ago.
Brad: Well, that’s kind of like what we deal with. The aesthetic world seems like there are laws in the books that are super old and the aesthetic world’s advancing so fast with new technologies and new treatments, and so sometimes the law [00:07:00] and the books don’t even keep up what’s actually happening in that real world.
Michael: Yeah. And so we’re going to be venturing into the world of psychiatry today, Brad. And we have a unique story, and this is actually not one of our real client stories. This is a real story in the news that was shared with us by one of our clients. It’s a fascinating and causes many questions on the physician-patient relationship. So first shout out to Tina for sharing the story with me.
Brad: So real story on real people from a real client, but not our client. Okay, got it. Let’s get in the story.
Michael: Not a real client. Real story given to us from a client.
Brad: From a client, but not our client in the story.
Michael: Yeah. So the story today follows for those curious, a New York Times article that was published on August 8th, 2024 called “The Gamer and the Psychiatrist.” And so Brad, I know [00:08:00] in a past life you considered yourself a gamer, or at least a quasi-gamer.
Brad: Yeah. I mean, I don’t know how far you want to go back, but I used to dominate the Pong game when I was about five. Then I moved over to Atari Breakout, then I jump into college when I started playing Madden football. And then at one point I was introduced to the first person shooter game called Doom. I don’t know if I ever really was very good at it though.
Michael: I wasn’t much of a gamer, but my college years, of course, when you have too much time on your hands, I did become a master of Joe Montana Football and Techno Baseball. But one of the main characters in the story today is a psychiatrist who is referred to in this article as Dr. K.
Brad: Okay. So this is based on this real story, and the title of the article you read leads me to believe that Dr. K was treating a gamer.
Michael: Well, you’re using context clues well, however, Brad, you’re making a dangerous [00:09:00] assumption because your statement actually is the fascinating dilemma of this entire article. And so you know what they say if you assume, you make an ass out of you and me. And I think you’re doing that here as we’ll.
Brad: I stepped in that one. No more assumptions for me, Mr. Michael.
Michael: Okay. So here’s the backstory on Dr. K. He was a gamer during his younger years. In fact, he was pretty obsessive and it got so bad kind of in his late teens that he nearly flunked out of college. Dr. K’s life changed in his twenties when he went to India for three months studying meditation and yoga.
Brad: Okay. Did he break this gaming addiction that he had?
Michael: He did, yeah. He came back to the United States, he went to medical school and even completed his residency at Harvard.
Brad: Wow. That sounds like some really good mediation in yoga.
Michael: Yes. Dr. K was interested in learning, [00:10:00] and when he was doing his psychiatry training, he was interested in learning about video game addiction, and he was disappointed to, to find that there was little in the psychiatry world about this type of addiction. In fact, they really didn’t know much at all about the gaming world.
Brad: Yeah. With all these different types of addiction and addictive personalities that is shocking that it was not noticed. And without it making any assumptions here it seems intuitive that the gaming is a problem for a lot of teens and young adults.
Michael: Yeah, I agree. Well, so Dr. K got out and he decided to bring a modern approach to psychiatry. He launched a business called Healthy Gamer and decided to stream to get his healthy gamer content out there. And he used Twitch as his medium to launch his business.
Brad: Well, I think we have maybe a vocabulary word for some people. For those not familiar, Twitch is a live streaming service [00:11:00] that focuses on video games and eSports competitions. It also offers types of live streaming content and is apparently really different than my MySpace page.
Michael: Yeah. I don’t know MySpace or Twitch, so I’ll just agree that they’re different. So Dr. K started streaming his interviews with prominent gamers on his Twitch account. And the conversations would kind of focus on mental health struggles and would sometimes last for hours.
Brad: Wow. Okay. Interesting. How did this Health Gamer, I guess, streaming service make money?
Michael: Yeah, I mean, the viewers would make donations and then they could subscribe to Healthy Gamer, and so that was the, I guess the economic engine.
Brad: Okay. Creative way to leverage Dr. K’s passion for mental health and gaming addiction. I’m not seeing the compliance dilemma yet.
Michael: Okay. Let’s introduce the second important person for today’s story. [00:12:00]
Brad: Okay.
Michael: The gamer in the story, and he is referred in, the story, is known as Reckful, and he is apparently a legend in the gaming community. Dr. K had even idolized Reckful back in his gaming days.
Brad: I wonder if Reckful was really good at Pong like me? So the good doctor knows of Reckful?
Michael: Yeah. I don’t think anyone playing Pong is doing live streaming on Twitch.
Brad: Okay. Maybe on their live streaming on their MySpace page.
Michael: Yeah. So, Reckful had agreed to do a live streamed conversation about Reckful’s mental health journey. Reckful was so famous in the gaming world that this would put Healthy Gamer on the map.
Brad: Nice. Well, was this this supposed to be like a live therapy session?
Michael: Yeah. I mean, this gets back to when you made an ass of yourself earlier. It’s an important question.
Brad: Can we just cut that, Kennedy? I mean, thank you. [00:13:00]
Michael: Yeah. I’m just going to keep bringing it up whenever I have a chance. I mean, this idea of a live therapy session is your question. It’s important, and there was major boundaries set at the beginning. And importantly, Dr. K was positioning this not as a therapy session, not a treatment, but a conversation. And so, Dr. K even noted to rightful that he could not treat Reckful’s depression over the internet.
Brad: Okay. So what happened?
Michael: Well, the initial live stream was almost two hours and was apparently according to this article, captivating. Reckful shared about his older brother’s death by suicide, even opened up about his own suicide attempt. I mean, it got very raw and very real.
Brad: Yeah, sounds kind of dark, but this is definitely sounding like they might be blurring some lines here.
Michael: Yeah, for sure. I mean, [00:14:00] it was also clear that Dr. K and Reckful bonded and they really liked each other. That really kind of probably drew the audience in it even more. It also, going back to your blurred lines, I mean, it started getting personal and deep to the point that Dr. K said, hopefully I don’t get sued because I’m not really delivering medical care. That’s a quote from the article of Dr. K. Well, Reckful response was, “I’ll try not to kill myself anytime soon for you.” It would came across supposedly kind of as a banter because they were…
Brad: Okay. So they’re kind of having fun with it. But some reason my spidey sense is a little bit going crazy right now.
Michael: That’s wise, Brad. so after the first episode, I guess because it got so raw and real, Dr. K put up some professional boundaries. [00:15:00] And he had Reckful signed some consents before they did any other interviews, and he just really wanted the paperwork to be clear that they did not have a physician-patient relationship, and that these were only conversations.
Brad: Right. So it sounds like Dr. K was attempting to take steps towards compliance with these waivers.
Michael: Yes. They ended up doing five more conversations with live audiences. And I mean, when I say he’s famous, Brad, the live audiences were in the hundreds of thousands. Yeah. And so the conversations tragically ended because Reckful died by suicide at 31 years of age.
Brad: Wow. That took a tragic turn. It had such sad ending to a story that sounded like it was helping a ton of people.
Michael: I know. It was crazy. I mean, apparently when Dr. K did his next Healthy Gamer episode, he openly wept on the show [00:16:00] as he talked about Reckful’s death for the first time. And it was clear that Dr. K was trying to help and that he was actually was making an impact on the gaming community.
Brad: Well, how so though?
Michael: Well, I guess throughout this, whatever five episode-ish journey viewers started commenting that they were inspired by all of this to seek out mental health treatment. And then a really cool thing started happening in the gaming world is they would put badges on their online profiles, and they had, I guess, some certain badge that would indicate that they were open to talking with other gamers about mental health.
Brad: Well, that was interesting. And clearly Dr. K’s heart was in the right place for sure.
Michael: He did have some critics. I mean, other professionals were kind of criticizing this platform of live streaming these “conversations” [00:17:00] and from what it sounds like, the sessions as it evolved started becoming so intense that some of the critics would kind of describe it as voyeuristic, like you were watching something you felt like you shouldn’t be a part of as it got deeper and deeper into it.
Brad: Yeah. But for starters, you said that they had a really good relationship and these kind of conversations that are really coming from the heart can be very engaging.
Michael: Yeah, for sure. And then for a little bit of a twist, there was actually an added compliance layer that came out to this terrible story.
Brad: Okay. What happened?
Michael: So two years after the incident, a newcomer to the streaming world heard about this Dr. K/Reckful story, and he decided to file a complaint to the medical board against Dr. K. Now, the newcomer grew up in a family of psychologists and was taught a strict view of psychotherapy. [00:18:00]
Brad: Yeah. And for those listening maybe wondering, well, how could this person file a complaint? And as we’ve talked about many other episodes, complaints typically come either from someone who’s angry, right. Angry patient, angry employee, or former employee, angry competitors. However, anyone can file a complaint and then the board has the discretion to handle that investigation.
Michael: Yeah. Unfortunately, as it turns out, the person who filed the complaint was also himself a content creator on Twitch, and he admitted that he had filed the complaint to draw attention to his own audience.
Brad: This story just took another turn.
Michael: I know. Well, let’s go to break and talk about some lessons to be learned and find out what happened to Dr. K.
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Brad: Welcome back to Legal 123’s with ByrdAdatto. I’m your host Brad Adatto, my co-host, Michael Byrd. And Michael, this season our theme is Compliance Fundamentals. And today we’re talking about a really sad story that you’re giving us that came from the news, and although this was not our client, but our client did share it with us. But it’s a story about just the lessons learning what you had to think about between the physician and the patient relationship.
Michael: Yeah. So we’re kind of tracking a New York Times article that happened on the East Coast, and we have this psychiatrist, Dr. K and a gamer, [00:20:00] Reckful, and Dr. K who had this kind of deep history and passion for the gaming world and helping the gaming world because he himself had a gaming problem that he overcame. He created this platform called Healthy Gamer, and did Live streams. Did live streams with Reckful, and to be fair to Dr. K, number one, clearly his heart was in the right place. He was trying to make a difference. And number two, he did a lot of things to try to set the boundaries appropriately on the nature of the relationship. And the pressure came in once Reckful was not doing well. He died by suicide several months after all this started. And so, it was a tragic story in of itself. And then fast forward a couple years later, [00:21:00] and an opportunistic live streamer decided to report Dr. K to the medical board to kind of gain attention to himself. And as we left off, anyone can report someone to the medical board. So we kind of have Dr. K having a medical board investigation, looking at this whole scenario of his doing these “interviews or conversations” with someone over livestream.
Brad: Right. And key to that complaint, it was coming from someone who was a competitor, so he was using it as an advantage as this particular person tried to build up their particular platform. But let’s go back and talk about that physician patient relationship.
Michael: Yeah. That’s the key to the whole thing. So first, why don’t you go first, Brad, and talk about the general principles that go with establishing the physician-patient relationship, and then I can add some flavor with some kind of special applications that particularly apply in the psychiatry world.
Brad: [00:22:00] Okay. Yeah. And I think for many people, they assume that the doctor-patient relationship typically being begins when a doctor agrees to diagnose or treat that patient. This agreement can be formed or implied, such as when a patient schedules an appointment or when the doctor offers medical advice or even informally offers advice.
Michael: Brad, what did we say about you being an ass? I mean, I’m sorry about you making assumptions?
Brad: We said we shouldn’t do that. In many legal contexts, whether someone is referred to as the “patient” formally or as less significant to the doctor’s actions, so really what they’re looking at, what are the doctor’s action in terms of providing that care advice. For example, if the doctor provides an evaluation and treatment or a follow up without expressly declining to take on the patient, the relationship is presumed to have started. Now, Michael, what are some of the compliance steps the physician should consider or make sure they do to figure out if their physician-patient relationship has been established?
Michael: Yeah. It all starts [00:23:00] with having clear communication on the scope and limits of care that are being provided, and then having documenting the conversations and decisions accurately and comprehensively. And of course, using written consent forms when beginning treatment or taking on a new patient.
Brad: Yeah. And I should also note if there is a refusal to provide treatment for any reasons, for any decisions, that should be noted. But once you start treating, the refusal kind of is irrelevant; you’ve already started the treatment. Are there any special rules for a psychiatrist?
Michael: Yeah. And here’s the twist. So as we’ve said, Dr. K was really trying to position this as a conversation and getting the agreement from rightful that this is not treatment. I’m not beginning treatment. We’re only having a conversation. It wouldn’t be a doctor-patient relationship. [00:24:00] And there’s this kind of psychiatry world ethical concern that could dates back many years about publicly talking about individuals who are not patients. And so, think about the pressure point here. Dr. K’s positioning this for Reckful not to be a patient because he didn’t want to be doing all this online. Yet, there’s this other thing that he can’t be talking about someone publicly who’s not a patient, and so there’s a kind of a risk no matter which way you cut it.
Brad: Yeah. I mean, and it’s difficult ’cause obviously I’m sitting here thinking if as an audience member hearing this story, it would appear that he did certain things, but because of those additional requirements based on his scope of practice, it’s a little bit harder to do this in a live stream with a [00:25:00] person who is or is not your patient. And I think for our audience, maybe we can jump to this part, what ended up happening to Dr. K?
Michael: So it was interesting. First of all, it was a two year investigation. I mean, it is hard to paint the pain for our physicians out in the audience that haven’t gone through this before of the time, the money, the emotional toil of having something like this hanging over your head for two years. But at the end of it, he received a public reprimand, which as you and I know is a real no – there’s no real consequence to his license. It’s basically a hand slap. I think without the article didn’t talk about this or you and I would be speculating a little bit, but I think that the fact that he had consent from Reckful and that he went to such great lengths to create [00:26:00] the boundaries on the relationship, ended up mitigating this finding that there was unprofessional conduct, or not the finding, but mitigating the consequences to the public rep reprimand.
Brad: Yeah. And it sounds like what Dr. K did was he really did attempt to take all the things that you’d want to see somebody think through the process of making sure that this individual understood whether or not there was or was not a relationship, and that he truly wasn’t treating him by having these consents.
Michael: Now I was going to add something too there too, because I think about the actions he took, and they’re pretty in line with how we walk our clients through it, but it illustrates the risk, right? Like, you are going to do something that’s risky and may draw public attention because it’s so out there. And so, the risk came back [00:27:00] in the sense of costing him two years and a lot of concern, but the steps he did ended up really minimizing the impact.
Brad: Yeah. And this is a perfect example of that, as physicians and other medical providers utilize social media outlets to really enhance their business and obviously personal reputation, they can’t forget that that relationship between the patient and the physician is really based on a trust level, which gives rise to the physician’s ethical responsibilities, kind of like you were talking about, and make sure they’re placing the patient’s welfare above the physician’s own self-interest. And again, in this particular case, keep going back to there was a lot of communications that I’m not treating you. And it sounded like, and if I remember in the article, even his family didn’t feel like Dr. K did anything wrong. But it wasn’t like they felt like he was treating him. But now we’re getting close to the end, Michael, what are some final thoughts?
Michael: [00:28:00] Yeah. Medical board rules that regulate the physician-patient relationship, were not built with social media in mind. Even with good intentions like Dr. K, compliance becomes a risk when you start kind of presenting doctor-patient content in any form of media. Live media creates an even higher risk because at least when you have recorded content, there’s that moment in time where you can say, you know what, that may have gotten a little bit too real, and we may have to not publish it or rerecord some of it. When you’re live, it’s just there, and that’s what happened here. And so, this is an unfortunate reality for kind of these modern progressive physicians with good intentions to really make change. They have to understand that [00:29:00] they’re taking a compliance risk even when they do it right, and they really need to lean into it every step of the journey so that it’s not just a one time, here’s your consent forms, but you’re really walking through it the entire time.
Brad: Well, good. And that’s probably audience members, why we don’t do anything live for our podcast so that we can re-record stuff – and Kennedy and cut that. No, just kidding. Next Wednesday, Michael, we are back. We’re bringing back series regular and our partner Jay Reyero, when he joins us to highlight the compliance fundamentals of properly billing and coding in a medical practice. Thanks again for joining us today. And remember, if you like this episode, please subscribe, make sure to give us a five star rating and share with your friends.
Michael: You can also sign up for the ByrdAdatto newsletter by going to our website at byrdadatto.com.
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