Tuesday, March 13, 2012

BNA: New Social Media Pose Legal Risks For Health Care Providers, Attorneys Say

Ralph Lindeman, March 9

The explosive growth of blogs, Twitter, Facebook, and other social media creates new legal risks for health care professionals in areas ranging from privacy to employment, legal experts warned at a panel discussion March 8.

“The biggest problem” in health care caused by social media communication “is a lack of control over patient confidentiality,” said Jennifer R. Breuer, a partner and vice chair of the health care practice group at Drinker Biddle & Reath in Chicago, which sponsored a webinar titled “The Rise of Social Media in Health Care.”

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) prohibits health care providers from using or disclosing individually identifiable health information, she noted, adding, “Yet it's very easy to inadvertently disclose patient health information through social media.”

Citing one recent example, Breuer told of a pediatric nurse who posted on her Facebook page a photo of a child in a hospital bed, along with a request for prayers before the child was to undergo brain surgery. The nurse said she did so at the request of the child's parents.

“Even so, the nurse should have obtained a HIPAA-compliant, signed authorization from the parents,” Breuer said. “Without authorization, the nurse was bound by HIPAA to safeguard the child's personal health information.”

Live Tweets of Coronary Bypass
Social media also expose hospitals and other health care providers to risks beyond privacy concerns, Breuer said. In late February surgeons at Memorial Hermann Hospital in Houston “live-tweeted” a double coronary artery bypass, with one surgeon tweeting, posting photos to the hospital's Facebook page, and responding to questions while another surgeon performed the operation.

“Whether there was a privacy violation is unclear,” Breuer said, because the operation did not show readily identifiable images of the patient. “But what about malpractice risk if something went wrong?” she asked. The surgery was sent to more than 4,000 Twitter followers in real time with photos and videos, she said.

Blogs sponsored by hospitals and other providers may also pose legal risks through such features as “Frequently Asked Questions,” or “Ask the Professional,” Breuer noted. “You need to consider whether you are creating a physician-patient relationship,” she advised.

Moreover, when the “patient” and medical blog are in different states, there may be problems with practicing medicine without a license, she noted, because the controlling law is where the “patient” is, not the physician. To reduce risks, providers should avoid diagnosing specific medical problems or providing specific medical advice, Breuer said.

Labor Law Issues Arise
Like other businesses, hospitals and other health care providers need to be aware of how social media affect employment relationships, said Stephanie Dodge Gournis, a partner with Drinker Biddle & Reath's labor and employment practice.

In the area of labor law, employers need to be careful about interfering with social media communications between employees, Gournis said. For example, the National Labor Relations Board has said employees are free to engage in communications with other employees that their employer may consider “rude, discourteous or disloyal,” she noted. The NLRB considers such communications to be protected as “concerted activity” under the National Labor Relations Act.

The NLRB will consider unlawful “any social media policy that employees could reasonably interpret to prohibit protected activity,” Gournis said.

“Most of the health care provider policies that I'm seeing today are not going to meet the NLRB standards,” Gournis said.

Allowable Topics in Policies
Specific topics that can be addressed in employer social media policies, Gournis said, include:

• prohibitions against employee release of personal health information;
• prohibitions against release of confidential business information and trade secrets;
• requirements that employees include disclaimers when discussing provided services; and
• prohibitions on employee violations of law, including discrimination, harassment, and

Beyond company social media policies that affect employees, Gournis said, “Social media has become the smoking gun in all sorts of discrimination and harassment claims, wrongful termination and defamation claims, and negligent referral claims.”

She added: “Now we have the paper trail or comment trail that shows either communications by managers directed toward employees or co-workers toward one another. All these types of issues create additional challenges and legal risks that [a company's human resources department] is going to have to answer.”

Employees' Heavy Use Poses Challenges
In addition, “There is a tension,” said Gournis, between how employees perceive their right to use social media at work and how employers view their right to monitor social media use.

A workplace survey conducted by Deloitte in 2009 revealed that 22 percent of the employees surveyed said they visited social networking sites five or more times per week, Gournis noted. Seventy-four percent of the employees surveyed said it was “easy” to damage an employer's reputation on social media.

In the case of disgruntled employees, she said, “They know how much damage they can do to an employer by using social media as a megaphone.”

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