Twitter, the fast-paced social media vehicle, offers physicians and other health care professionals, the opportunity to quickly and efficiently interact with the public. As the use of social media evolves, steps must be taken to address known, and unexpected, legal and social consequences.
The prevalence of social media in health care is indisputable with thousands of health care professionals using Twitter or similar social media tools. As a result of the information available on Twitter and other social media sites, consumers (e.g., patients) are becoming increasingly educated and informed of alternatives in relation to health care decisions. In other words, consumers expect, even demand, more information. This, in itself, creates a new paradigm to which health care professionals must adapt.
In addition, health care professionals are using social media sites, such as Twitter, to gain a competitive edge by disseminating information for marketing (e.g., branding) and fundraising purposes. In one of the more innovative efforts, the Seattle Swedish Medical Center hosted what it called the first-ever “sleep-up.” The event was an all-night live stream of a patient undergoing sleep disorder testing with an associated Twitter question and answer session with physician sleep specialists.
When tweeting, health care providers need to pause and take steps to protect themselves from the known – and unknown – pitfalls created by social media sites in the health care industry. The following are some of the most significant risks faced by health care professionals in participating in Twitter, or similar social media, for professional purposes.
Formation of Unintended Provider-Patient Relationships
Another important challenge that health care professionals face when responding to specific posts on Twitter is distinguishing between medical advice and medical information.
Once a health care professional gives specific medical advice rather than more generalized medical information, the health care professional may be deemed to have established a provider-patient relationship that comes along with, among other things, the burdens of potential malpractice litigation and violation of state licensure laws if provider and patient are in different states.
When responding to tweets, the health care professionals must provide answers in broad general terms that do not create the appearance of diagnosing or giving treatment instructions to a specific patient. In addition, where possible there should be clear disclaimers that this is not medical advice and readers should consult their own practitioners for treatment options or reach out to the author through secure portals.
Potential Violations of Patient Privacy and Confidentiality
A significant issue with all social networking is protecting the privacy and confidentiality of patients. All too often the complexities of these issues are not understood and there are numerous stories nationwide of health care professionals being disciplined by medical boards or losing employment and/or clinical privileges as a result of disclosure of excessive identifiable patient information without patient authorization.
Any time a health care professional posts the image, recording or any individually identifiable information about a patient on any publicly available social network site, even if such site is membership limited, the health care professional must obtain the patient’s authorization on a form that complies with HIPAA, the Federal Substance Abuse Confidentiality laws as necessary, and other applicable federal, state and local laws.
Even if the patient’s name is not explicitly stated, if the patient would be identifiable by the sum of the information provided, an authorization is necessary (e.g., If a physician describes the unique physical characteristics of a patient on Twitter such that people could identify the patient even without the name, patient confidentiality could be implicated).
A question then arises as to whether it is sufficient authorization if the patient first discloses the individually-identifiable information on a tweet and the health care professional merely responds. There is little legal guidance on this issue specific to social networking, but there is no exception under HIPAA that allows a health care professionals to disclose patient information merely because the information has already been made public, and state laws may be similar.
This means that if a health care professional responds to a post and discloses information about a patient, without the patient’s explicit authorization, the health care professional is potentially exposing himself or herself to censure even if the patient initiated the public communication. A better approach to this scenario is to answer specific questions in general terms and recommend the patient contact the provider in a more private setting.
Exerting Undue Influence
In many states it could be considered professional misconduct for health care professionals to exert undue influence on patients by promoting products from which the health care professional might achieve financial gain (e.g., selling health food supplements or medical devices when the professional owns the applicable company).
In addition, the American Medical Association (AMA) has published ethical guidance regarding the safeguards that should be put into place when selling health-related products. Although there is little to no guidance on whether promotion of products by a health care professional through a professionally-oriented Twitter site would be considered undue influence or a financial conflict of interest, health care professionals should be aware of state laws and AMA guidance, as applicable, and avoid promotion of health related products when it creates appearance of undue influence or personal gain.
Unprofessional Behavior
In a recent study by the AMA, it was found that a small percentage of tweets from a sample of physicians contained inappropriate materials including profanity, sexually explicit material, discriminatory remarks and potential patient privacy violations.
When participating in any social media, particularly in the informal culture that can be associated with Twitter, health care professionals should be constantly aware of the public nature of these posts. Specifically, health care professionals need to remember that such posts can be seem by colleagues, patients, employers, lawyers, insurance companies and the media.
Unprofessional tweets have, among other things, led to loss of employment and disciplinary actions and have been raised as evidence in legal proceedings. Health care professionals must be sure to maintain professional demeanor when tweeting, regardless of the comments made by other individuals in the exchange.
Misuse of Information
In addition to laws regarding patient confidentiality, there are a number of federal and state laws regarding topics such as testimonials, lobbying, political activity, intellectual property and copyrights.
For example, in the use of testimonials, the FTC requires employees to disclose their employment relationship if providing a testimonial about an employer. The legal cases and laws regarding these topics are still evolving, and therefore, caution should be taken when engaging in such activities. If advocating for a particular product or individual or reproducing from another person’s written works or social media site, health care professionals should familiarize themselves with the legal implications of such actions.
Inability to separate personal and professional lives
Unlike telephone and email, the direct interaction of social media, particularly with the technology and culture of Twitter, can complicate the separation between professional and private roles, causing increasing intrusion into the private life of health care providers.
For example, the fast paced culture of Twitter may raise expectations from readers that responses will be consistently immediate regardless of when the tweet is posted. It is therefore important for health care professionals to make it clear that they will not immediately reply to all Tweets and will ignore inappropriate questions, particularly when such questions pertain to personal matters. Furthermore, it is recommended that health care professionals set up separate personal and professional Twitter accounts and keep their personal account private with appropriate privacy and/or security settings.
Conclusion
Although there are significant opportunities offered by the creation of Twitter, the pitfalls are also significant and not yet fully recognized. It may be undesirable, or even unrealistic, to avoid the trend towards social networking, but awareness of the potential concerns could prove invaluable. As the uses of Twitter expand, health care professionals need to keep abreast of this ever-changing landscape.
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About the Author
A partner at Garfunkel Wild, P.C., Stacey L. Gulick joined the firm in 2001 and is a member of the Health Care, HIPAA, Health Care Information and Technology and Compliance and White Collar Crime Defense Practice Groups. Ms. Gulick has extensive experience in health care administration, having worked as a medical staff coordinator, risk manager and compliance officer for several years prior to becoming an attorney.
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