Social media has become an ever-present facet of daily life. But actions that you consider innocent could end up causing you legal trouble. Following a few simple rules can help medical practices avoid real liability in the cyber world. Here are four situations to watch out for, and recommendations for staying safe.
1. HIPAA Rules Apply to Everyone
Earlier this summer, the University of Cincinnati Medical Center was named as a defendant after several of its employees allegedly misbehaved. According to lawsuits, a female patient's ex-boyfriend convinced two UC Medical Center employees to post a screenshot of the patient's medical records on Facebook.
It gets worse. The posting revealed that she was positive for syphilis. With discretion having already been abandoned, the employees chose the Facebook page "Team No Hoes" for the posting. As if that weren't bad enough, some of the group's 2300 members joined in. Commenters on Facebook called the patient a "slut" and a "hoe" and broadcasted her STD diagnosis.
This is just one example of an increasing area of liability exposure for healthcare providers. With the tremendous benefits of social media come risks, and some of these risks are not readily apparent.
Similarly, physicians who own a practice can be sued for the social media activities of their employees if those employees violate privacy laws.
Advice: Train all of your staff on privacy issues. HIPAA instruction often does not make it past physicians and practice managers. A little training and awareness will go a long way.
2. Potential Legal Issues With Online Physician Reviews
There are dozens of websites that offer reviews and ratings of physicians and medical facilities. Some, such as RateMDs.com, are specific to healthcare, while others, such as Angie's List, mix physicians in with plumbers and auto mechanics. And sites like these are gaining in popularity with prospective patients. In fact, the Pew Research Internet Project[1] reports that 30% of Internet users have consulted online reviews or rankings of healthcare services or treatment. In turn, the public interest in online reviews and ratings has attracted the attention of the medical community.
Inaccurate, hurtful, and even malicious patient reviews and ratings are easy to find on the Internet. Understandably, many physicians want to "set the record straight" by posting a response to an objectionable review or rating. Sometimes you might even recognize the specific patient and be tempted to respond specifically about the circumstance. But a response might trigger liability.
"Physicians need to be careful not to violate HIPAA when responding to a patient's review," cautions Jeff Segal, MD, JD. Segal runs eMerit, a North Carolina-based practice-and-business management firm for physicians. A patient's protected health information, like their name or photograph, linked to a review means "your hands are tied and you can only speak broadly," says Segal.
Advice: Do not engage in social media discussions with patients. Do not attempt to specifically address patients' complaints about you online in any sort of review site. No matter how much you want to air the real facts, regret will replace that desire in time.
Even if the patient review is entirely anonymous, Segal warns physicians about getting into a debate online. HIPAA and patient privacy concerns make for a perfect legal minefield for health providers to navigate when attempting to respond to a patient review.
Innocuous Photos Could Get You Into Trouble
3. If Your Practice Website Posts Photographs
"As a general rule, every image you see on the Internet is going to be copyrighted," says Greg Wesner, Esq., of the Seattle-based law firm Lane Powell, PC. Wesner is a leading intellectual property rights attorney who routinely handles litigation in the healthcare space.
"What we have seen in the medical practice context is a physician's staff or brother-in-law who owns a web design company and builds the physician's website. That person then goes on the Internet and pulls down images to use in constructing the practice's website."
The problem, as Wesner correctly identifies, is that often the images pulled off of the Internet are copyrighted. Using an image without permission makes the website owner an "infringer" under the law. This legal distinction comes with potential liability that can be costly. "An analogy would be, you are walking through an airport and you see a bag. No one is standing next to it. You grab it and decide to make off with it. It is really no different [when using images published elsewhere], except that in the context [of taking the bag], we recognize it as stealing because it is a more common understanding for us," Wesner explains.
But not all of Wesner's work involves innocent misappropriations of photographs. "We have also seen the posting of another physician's before-and-after images on a website," says Wesner. Wesner represents one of the top facial plastic surgeons in the county. What he has discovered is disturbing. "We have identified at least 15 instances of his before-and-after pictures being used on other physicians' websites." People like Wesner and his clients are actively imposing liability for the unauthorized use of copyrighted photographs.
Advice: Do not post any image/photograph unless you know that you have the rights to use it. This is a rapidly growing area of liability. Owners of images can electronically scan the Internet to look for their images, thus leading to infringement claims.
4. You Could Get Into Hot Water if You Review Social Media When Hiring
Liability from social media use does not end with posting. Even the review of social media sites in certain circumstances can lead to trouble. When it comes to hiring new employees, "Lots of people will simply Google candidates and see what they find," says Amy Loggins, a Georgia-based labor and employment lawyer with the firm Taylor English. Much of the information obtained from reviewing social media sites, says Loggins, is information that "you don't need to know when you're going through the hiring process."
Furthermore, she warns that the Fair Credit Reporting Act has very precise steps that an employer must follow if a job offer will not be made or is withdrawn, or if an employee is terminated, on the basis of a background check. Loggins points out that no one would ask a candidate about his or her religious beliefs or age in an interview, but often this same information is found via a social media search.
Loggins' message is that you cannot unring the bell. Once you know a candidate's pregnancy status or religious belief, this knowledge can be used against your practice in an employment law claim. Loggins recommends that practices be very careful when using social media to vet candidates and current employees.
Advice: Do not search employees' or employment candidates' social media profiles. You may learn inaccurate information or information that can be used against you later.
Suggested Reading
The Federation of State Medical Boards recently issued social media guidelines for physicians. It is worth your time to review these guidelines.
References
Fox S, Duggan M. One in three American adults have gone online to figure out a medical condition. PewResearch Internet Project. January 15, 2013. http://www.pewinternet.org/2013/01/15/health-online-2013/ Accessed August 20, 2014.
