Legal Risks &

Social MediaPresented by:

Michael J. Schoppmann, Esq.PresidentMLMIC Insurance Company

Upon completion of this program, participants should be able to:• Examine the current use of social media in healthcare• Analyze the positive aspects and pitfalls of social media• Describe the appropriate use of social media in marketing• Formulate approaches to address negative patient reviews

posted online• Evaluate the potential legal implications of social media on

patient privacy and confidentiality• Select strategies to develop and monitor social media plan &

policies

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Objectives

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I. Current Use in Healthcare and Positive Aspects

• Pew Research 2018: 69% of US adults use social media.

• Journal of Medical Internet Research (2018): More than 99% of hospitals have Facebook, Foursquare and Yelp accounts.

• 40% of consumers report that information they see on social media affects how they handle their health.

• 42% look at health-related consumer reviews.

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Use of Social Media

• New York, California, and Texas hospitals use social media the most of any states.

• Internet users:• 32% post about their friends/family’s health experiences• 80% specifically look for health information:

• Half are searching for information about a specific doctor or healthcare professional

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Use of Social Media

• 72% of internet users are active in social media.• 43% of baby boomers use social media for health

care related information.• 27.4 million people over the age of 55 are actively

engaged in social networking:• 19 million of those use Facebook

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Demographics of Social Media Use

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• Advertising/marketing:• YouTube traffic to hospital websites has increased 119% year-

over-year

• Patient education.• Professional education:

• Students• Professionals

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Positive Aspects of Social Media

Organizations can communicate with a large audience in a timely and cost-effective manner in order to:

• Share general news: post links• Organizational news and services• Community events and wellness programs• Present facility success stories• Communication:

• Information during disasters• Recruitment

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Use of Social Media by Healthcare Organizations

• Survey of 4,000 physicians’ use:• 90% personal activities• 65% professional reasons

• Physician-only professional sites:• Peer-to-peer interaction:

• Discussion of treatment options• Query peers for expert advice

• Sermo, Doximity, Medical Directors Forum, Quantia MD, Doctors’ Hangout, Doc2Doc

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Use of Social Media by Physicians

• More than twice as likely to use social media to follow healthcare issues and topics away from work (47%), than at work (20%).

• Share work experiences:• #nurselife• http://www.rncentral.com/nursing-

library/careplans/life_in_er_50_best_blogs/

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Use of Social Media by Nurses

• Recent survey: 40% of consumers report that information they see on social media affects their healthcare including choosing practitioners and making healthcare decisions.

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Patient Use of Social Media

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Patient Use of Social Media

PITFALLS

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II. Pitfalls of Social Media in Healthcare

We’ve come a long way

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Social Media Pitfalls – Communication and Misuse by Patients

Patient to Physician Communications on Social Media

The risk of a confidentiality breach increases significantly if the social medium used allows for two-way communication.• Responsive posts should not include patient names or

confidential medical information.• Avoid responding to patient complaints – never resolve the

dispute and only develop a “pen pal” with a paper trail• If patient-specific exchanges do occur, they should be printed

and made a part of the patient’s chart.

• Patient use of social media for medical information can lead to misinformation:• Quality of information:

• Authors:• May be unknown or identified by limited information• Credibility/credentials

• Providers should guide patients to professional websites (CDC, AMA, ACOG, etc.)

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Social Media Pitfalls – Patient Communication and Misuse by Patients

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Preserving Confidentiality of Patient Communication: The Secure Patient Portal

• Encrypted patient portals are a safe and secure means of communication that a practice can use for a variety of services:• Dialog between patients and practitioner• Medical record access• Advise patients of non-critical labs and other test results• Appointments and referrals• Prescription renewal• Provide guidance to professional websites for accurate

medical information

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Use of a Secure Patient Portal

• Potential hazards to professional image:• Posting information that may be misconstrued or taken out of

context (derogatory remarks regarding a patient)• Inappropriate/discriminatory pictures or language• Misrepresentation of credentials• Failure to protect patient privacy

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Social Media Pitfalls - Misuse by Physicians and Staff

• Doctors from Puerto Rico sent to Haiti for humanitarian mission became subject to ethics investigation due to Facebook posting:• Patient and public perception of online postings• Medical humor may not be appropriate

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Example of Misuse - Professionalism

“Photos of drinking, grinning aid mission doctors cause uproar”Headline on CNN (2010)

Rhode Island Medical Board Example of Misused Blog: • Frustrated with a patient who consistently failed to

monitor her sugar levels, a physician referred to her on his blog as “lazy” and “ignorant.” Another patient was offended by the remarks and filed a grievance with the state medical board.

• The Federation of State Medical Boards cited the incident as an example of how “physicians’ use of social media and social networking may undermine a proper physician-patient relationship and the public trust.”

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Example of Misuse - Blogging

• In Indiana, a nursing assistant served 3 days in jail for the offense of voyeurism after she photographed a patient’s naked buttocks and posted it on Snapchat.

• Off-duty employee of ED was fired for taking and posting a picture of patient’s backside:• Hospital employees who “liked” the photo were also fired

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Example of Misuse - Pictures on Smart Phones

New York, February 2015:• Nurses’ aide at a nursing home Snapchatted a

compromising photograph of mentally challenged resident to a friend.

• NYS Attorney General charged aide with felony of unlawful surveillance second degree and willful violation of health laws, misdemeanor.

• Aide pled guilty to misdemeanor.• Sentenced to:

• 1 year conditional discharge• 100 hours community service

• Surrender of CNA certificate.

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Example of Misuse - Snapchat

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Example of Misuse - OB-GYN Disciplined for Social Media Post

• Hospital stated her “comments were definitely inappropriate”:

• Educated all providers on appropriate use of social media

• Reviewed incident for possible HIPAA violation• Disciplinary action was taken but did not

comment on specifics

September 2017:• Two Navy corpsmen at a naval hospital were

removed from their jobs after allegedly posting a video and photos of newborns to Snapchat:• Including a photo of one of them flipping a middle finger at a

newborn with the caption “How I currently feel about these mini Satans”

• Video shows corpsman rocking to rap music while holding infant by the armpits

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Example of Misuse - Video of Newborns

• Caregiver distraction:• Texting, checking Facebook

or surfing the web may result in medical errors

• May be perceived as unprofessional by patients and/or visitors

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Social Media Pitfalls - Distraction

• Patient’s family sued anesthesiologist and surgeon following death of 61-year-old during surgery.

• At his deposition, the anesthesiologist admitted posting on Facebook during surgery.

• Surgeon testified that the anesthesiologist was distracted.

• Anesthesiologist failed to notice dangerously low oxygen saturation levels until 15-20 minutes after the patient developed cyanosis.

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Case Example: Malpractice Due to DistractionDallas Observer, Texas 2012

• Breaches of patient privacy:• Study of medical blog posts found that individual patients

were described in 42%: • 17% included enough information for patients to identify

themselves or their providers• Three included recognizable photographs of the patients

• Violation of professional boundaries:• “Friend” requests by patients:

• Do not accept• Communicate via patient portal

• Legal Issues:• Discoverability• Provision of medical advice in state where the provider is not

licensed

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Social Media Pitfalls - Other Pitfalls

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III. Use of Social Media in Marketing

The Federal Trade Commission (FTC) has jurisdiction over advertising appearing in various forms on the internet. The FTC defines advertising to include:

• Print, Radio and TV ads;• Internet ads;• Websites;• Social Media (Facebook, Twitter);• Patient Informational Brochures;• Informational Media (streamed internet content)

New York State has concurrent jurisdiction over advertising activities in the state.

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What is Internet Marketing?

• Violation of the Federal Trade Commission Act;• Violation of NYS Education Law §6530 (27);• Violation of NYS General Business Law §349;• Violation of HIPAA;• Violation of Specialty Code of Ethics;• Use as evidence in a medical malpractice case;Note: A physician is accountable for material appearing in internet advertising as well as on websites and social media.

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General Risks of Internet Marketing

• The FTC provides the following guidelines to maintain compliance to avoid a violation of the act:• Advertisements should be accurate and not contain explicit

or implied false claims or misrepresentations of fact;• There should be no omissions of material facts from

advertisements;• Physicians must be able to substantiate material claims and

personal representations made in advertisements

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Federal Trade Commission Act

• Defines physician advertising that is not in the public interest as professional misconduct. This includes advertising that:• “Is false, fraudulent, deceptive, misleading, sensational or

flamboyant”• Uses testimonials• Guarantees any service• Makes any claim relating to professional services or products

or the cost/price which cannot be substantiated by the doctor• Use of demonstrations, dramatizations or other portrayals of

professional practice in advertising on radio or television

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NYS Education Law §6530(27)

• General Business Law §349 and §350 provide a broad prohibition against all “unfair and deceptive practices” in advertising including internet advertising, websites and social media.

• Violations of this statute have been plead against physicians in medical malpractice cases involving procedures, treatments, and inducements.

• The NYS Attorney General has the authority to file charges and levy monetary penalties.

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NYS General Business Law

• The failure to obtain proper patient authorization before posting;

• The failure to ensure identifying features have been redacted or adequately obscured before posting;

• Using patient photos in a way that exceeds the authorization

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HIPAA Violations

• Professional liability policies typically exclude liability arising out of any advertising activity, or giving medical advice to a general audience by any means --personally, electronically, or otherwise

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Marketing and Insurance Coverage

• Advertising claims concerning the following should be compared to Federal and State Laws for compliance:• Efficiency claims;• Safety claims;• Predictability claims; and • Success rate claims.

• Use of “superlatives” in advertising (best care, highest quality of care):• Should be avoided:

• May hold entity/physician to higher standard of care in litigation• Risk Managers may not be aware of language put in

advertisement/website by marketing personnel

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Internet Marketing Recommendations

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IV. Addressing Negative Online Posts

• Examples: YELP.com, VITALS.com, RATEMD.com, AngiesList.com, etc.

• Public forums for consumers (patients):• Used for posting experiences • Frequently used for negative comments

• Reviews can impact the success of a medical practice.• Ability to respond to a review is limited as it may result

in privacy breach/HIPAA violation• Review sites will remove commentary that is threatening,

racist or vulgar – not opinions or disputes over facts

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Online Patient Reviews

Reit v. Yelp, Inc. 29 Misc.3d 713 (2010)• Dentist sued Yelp claiming he had a significant drop

off in patients as a result of the patient’s online comments: • Unidentified patient posted his office was “small, old and

smelly” and that equipment was “old and dirty”

• Court found Yelp.com had immunity under Federal Communications Decency Act as it was an “internet computer service” as opposed to a “content provider.”

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Action Against Review Site

• Must prove:• Statements or commentary were false• Actual damages or that the false statements tend to injure

profession or business

• Problems:• Truth and opinion are a complete defense to a claim of

defamation.• A lawsuit for defamation brings more attention to a negative

post which may have been hidden among positive reviews.

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Action for Defamation Against Patient

• Ohio: Attorney for Cleveland plastic surgeon “our position is she went far beyond [the First Amendment] and deliberately made false factual statements.”

• Arizona: $12 million verdict [vacated] against a jazz singer who used personal website and doctor rating sites to “criticize” a Scottsdale plastic surgery group.

• Michigan: Hospital sued daughter of elderly patient over Facebook post and picketing in front of hospital –claimed defamation, tortious interference and invasion of privacy.

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“Doctors, Hospitals Sue Patients Who Post Negative Comments, Reviews On Social

Media”-USA Today July 18, 2018

• New York v. Network Associates (NY County 2003):• Form contracts prohibiting consumer reviews are considered

deceptive business practice and are not permitted under Consumer Protection Law

• Lee v. Aster Dental (SDNY 2013)• Informed consent assigning Copyright of future on-line

commentary was unconscionable and comments were non-infringing (opinion) fair use under Copyright Law.

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Patient Intake Forms Prohibiting Consumer Reviews Not Permitted

• Resist the urge to retaliate – Never engage in an on-line argument which could result in a privacy/ HIPAA breach.

• Ignore it - Over 90% of patient reviews are positive and people focus on the overall trend as opposed to highs and lows.

• If the patient is identifiable, follow up to discuss the issue.

• Develop a standardized on-line response that does not violate privacy and addresses the commentary

• Consider if the review is accurate and learn from it.

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Addressing Negative Online Reviews

• “According to state and privacy laws, we are precluded from commenting on patient treatment. However, we are always available to discuss concerns with our patients. Patients are welcome to contact us directly.”

• “In order to protect our patients’ privacy, all patient concerns and complaints are resolved directly by our practice/facility and not through social media.”

• At [who you are] we strive for the highest levels of patient satisfaction. However, we cannot discuss specific situations due to patient privacy regulations. We encourage those with questions or concerns to contact us directly at [phone number].”

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Examples of Standardized Responses

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V. Legal Aspects of Social Media

• The legal implications of a breach of patient confidentiality involving protected health information (PHI) are the same for social media as with any other form of communication• Civil lawsuits;• Professional misconduct proceedings; • HIPAA Privacy Rule and Enforcement proceedings.

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Legal Aspects of Social Media

• License restriction, suspension or revocation may arise from:• Unprofessional behavior• Inappropriate use of social media• Sexual misconduct• Breaches of patient privacy• Abuse of prescribing privileges• Misrepresentation of credentials

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Legal Aspects: Social Media and Disciplinary Actions

NYS State Rules of the Board of Regents, Part 29 Education Law §6530• Office of Professional Discipline may institute disciplinary

action for:• Confidentiality breaches• Conduct which evidences moral unfitness, willful harassment, abuse or

intimidation of a patient either physically or verbally

Federal HIPAA Regulations• U.S. Department of Health and Human Services – Office of

Civil Rights • Investigates and enforces non-compliance with HIPAA Regulations• Can issue civil and criminal penalties.

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Disciplinary Actions

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Legal Aspects: Social Media and Malpractice

• Medical malpractice liability may arise if social media posts, blogs or other electronic communication are:• Construed as specific medical advice• Relied upon by patients

• Professional liability insurance coverage issues:• Medical professional liability policies typically exclude liability

arising out of giving medical advice to a general audience by any means personally, electronically or otherwise.

• “Covered territory” – practicing without a license if recipient of medical advice is located in a state where the physician is not licensed.

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Social Media and Malpractice

• Do not use social media for:• the practice of medicine • confidential practitioner-patient communication

• Limit the use to general informative, educational, or marketing purposes:• Reduces the potential for readers to misconstrue posts as medical

advice• Use a disclaimer to reinforce information posted is for general

educational/informative and they do not constitute medical advice• Include a reminder with healthcare posts that

readers should always consult their own healthcare professionals for diagnosis and treatment.

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Limit Contents of Social Media To Avoid Malpractice Liability

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Legal Aspects: Social Media and Litigation

People v. Harris 36 Misc. 3d 868, 874 (NY Crim. Ct. 2012) – in denying a criminal defendant’s attempt to quash a subpoena issued to Twitter the Court commented:

• “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world.”

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Social Media in Litigation

Forman v. Henkin (Court of App 2018):• Categorizing something as “private” does not

protect it from discovery.• CPLR §3101(a) provides that “[t]here shall be full

disclosure of all matter material and necessary in the prosecution or defense of an action”: • In determining if the information sought is discoverable, the

test is one of usefulness and reason

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Discovery of Social Media in Litigation

Forman v. Henkin (Court of App 2018):• Same standard applies to social media content as

any other information:• Is the material reasonably calculated to contain relevant

information?• Court of Appeals ordered disclosure of:

• Photographs from before/after the incident• Data revealing time and number of characters posted in

messages• Private messages may be discoverable

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Discovery in Litigation

• If a subscriber opts to deactivate his or her Facebook page, the page is no longer viewable:• Deactivating a Facebook page does not erase the previously

posted information

• Information remains in Facebook’s internal records and can be:• Restored by account reactivation• Obtained by a court order

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Deletion of Social Media

• Spoliation of evidence is the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding.

• Obligation to preserve evidence when a party “should have known that the evidence may be relevant to future litigation.”

• Destruction of relevant evidence can result in sanctions by the court for spoliation of evidence.

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Potential for Spoliation of Evidence

• Gomez v. Cabatic (2d Dep’t 2018): Proof that relevant evidence was willfully or negligently destroyed can anger a jury and result in an award of punitive damages, which are not covered by insurance.

• Possible sanctions include:• A missing document or spoliation charge to the jury, allowing

the jury to draw an adverse inference.• A preclusion order which prohibits you from introducing

evidence at the trial.• An order striking a pleading, which essentially results in a

default judgment.• Fines, including the payment of attorneys’ fees.

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Consequences of Spoliation

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Risk Management Strategies

• Define:• Goals• Level of engagement• Audience• Expectations:

• Professional• Personal

• Owner/oversight

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Social Media Plan & Policies

Address:• Current and future role of social media in the

healthcare organization:• How will it be used?

• Capabilities, safeguards, and limitations of the technology being utilized.

• Permissibility of communication with patients and prospective patients:• Who will communicate on behalf of the organization?

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Social Media Plan & Policies

• Identify consequences for inappropriate use:• Define a process outlining employee responsibility for

witnessing inappropriate use: • How to report

• Outline responsibility of employees outside their employment:• Actions may create risk for civil liability

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Social Media Plan & Policies

• Establish team/guidelines that define whether and how the organization will respond:• Include:

• Risk Manager• Marketing & Communication• Patient Representative

• Assign responsibility for:• Overall execution of social media plan• Posting content• Monitoring usage/policy violations

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Social Media Plan & Policies

• Staff education:• Privacy issues:

• Integrate social media with HIPAA training• Documentation of staff education to include:

• Completion of education and training • Signed confidentiality agreement

• Address photos, videos of staff, volunteers and visitors in privacy policies:• Prohibit use without authorization

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Social Media Plan & Policies

• Guidelines for Social Media use:• American Medical Association (http://www.ama-assn.org)• American College of Physicians (http://www.acponline.org)• Federation of State Medical Boards (http://www.fsmb.org)

• Review National Labor Relations Board guidance on social media policies and employee rights:• https://www.nlrb.gov/search/all/social%20media%20policy

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Published Guidelines for Use of Social Media in Healthcare

Thank You!

Michael J. Schoppmann, Esq.President, MLMIC Insurance Company

mschoppmann@mlmic.com

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