In a world where social media is seemingly everywhere, it is not surprising that physicians are increasingly using social media both personally and in their practice of medicine.
The Internet is a powerful tool used by physicians to share critical information and advances in health care. Given the significance of social media in today’s society and the importance of advertising to physicians, practitioners should be encouraged to share their experiences and information regarding services and medical developments to colleagues and the public. There are, however, certain risks that must be appreciated. The challenges physicians face when incorporating social media into their practice include maintaining patient confidentiality; maintaining professionalism and ethical standards; and an awareness of potential medicolegal risk.
Physician websites are exceedingly helpful, allowing patients to make educated choices about their health care. It is actually incumbent on physicians to share their knowledge. New, less invasive techniques, conservative approaches, surgeries offering statistically proven benefits, medications offering fewer side effects — these advancements, and others, should be shared with the public. Certainly, one of the most effective ways to disseminate this information is by using the Internet and social media. However, when creating websites and engaging in social media activities such as blogging, physicians must be aware that their statements may be considered advertising. For instance, New York’s General Business Law permits a private cause of action if physician advertising is found to be deceptive or misleading to a reasonable person, causing an injury. Medical malpractice plaintiffs can rely on this statute to claim that they were induced to seek treatment with the physician based on a website’s representation. Likewise, a physician must also be mindful of his or her own professional and ethical conduct when using social media. Violations can expose a physician to inquiries and investigations by licensure boards, as well as criticisms from professional organizations. Despite these regulations, Internet advertising is a valuable way for a physician to introduce advances and educate prospective patients about services or treatments. Without social media, these patients may not otherwise have access to such information. A physician simply must be aware that this information needs to be presented fairly and accurately to avoid potential liability.
An additional social media consideration concerns a physician’s potential exposure when responding electronically to a question or providing medical advice. If a patient-physician relationship is established, then that advice is considered medical treatment, which can serve as a basis for malpractice claims, regardless of whether a physical examination took place. This is especially of concern given the surge of telemedicine, e-medicine and virtual visits.
Further, the combination of medicine and social media creates privacy concerns. The AMA has emphasized that physicians should maintain patient privacy and confidentiality and appropriate boundaries of the patient-physician relationship if interacting online. HIPAA/HITECH require the de-identification of patients. However, there are circumstances where a patient can be identified without divulging specific information. Such considerations may arise in demonstrations of procedures using actual photographs, radiographic images or video. These are issues the physician should be mindful of when using the Internet to share experiences.
Social media and the Internet are beneficial tools, but there are factors that must be considered when engaging in such activity. Website content and online statements must be thoughtful and accurate. While use of social media allows physicians to connect with the world — which is a universal positive — they should do so with the appreciation that there are potential legal consequences.
Nancy J. Block and Jessica A. Bresnan, Partners at Martin Clearwater & Bell LLP, both focus their practice on the defense of physicians and medical centers in medical malpractice claims. Block is a member of the Firm’s E-discovery Practice Group and both are well versed in electronic discovery and social media legal issues. For more information, visit mcblaw.com.