A safe harbor for online networking for orthopedic surgeons

Introduction

B. Sonny Bal

Lawrence H. Brenner

In the first of a three-part series of articles related to the legal issues that are invoked by physician participation in social networking, we discussed how online activity of a professional can lead to the exercise of jurisdiction by a court that might otherwise not have jurisdictional authority over that person. Last month, author Joseph P. McMenamin, MD, JD, followed up by addressing the practical risks and nuances related to physician use of popular social media, such as Facebook or Twitter. We now present the perspectives of authors Jon Hyman, MD, and Aman Shah, MBBS, who will distinguish undifferentiated online social networking from professional networking, and offer protective measures physicians need in order to make full use of professional online social activity.

— B. Sonny Bal, MD, JD, MBA;
and Lawrence H. Brenner, JD

The concerns raised when an orthopedic surgeon participates in public social media have been addressed in previous articles. These relate to inadvertent violation of patient privacy, establishment of a professional relationship with fellow participants in social media and the triggering of court jurisdiction that might otherwise not exist. Different issues confront the surgeon who wants to engage in a private, secure communication with his or her peers, however. This article will show that physicians can achieve great synergies when collaborating inside of a professional global practice network, and that such participation in social media can be done safely.

Discuss in OrthoMind

A useful framework to examine the potential benefits of professional social networking is to examine the career development of the typical orthopedic surgeon, and look at the pluses and minuses of each career stage. As medical students, we were in an absorption mode as we imbibed information from books, professors, practical demonstrations and related sources, to develop our own knowledge database. To a considerable extent, most medical websites today still tap that stage of development, ie., the underlying value proposition of such websites is to offer information with the assumption that most of us are still in the absorption stage. Such sites, whether they offer text, slide shows, or other audio or video information media, essentially offer content that targets our information needs.

The next stage of professional development is that of training as residents and fellows. At this stage, we learn from mentors, and with colleagues, rather than absorb passive information. Professional communication during this phase of training drives the larger goal of patient welfare, and such communication is open in the sense that we usually do not worry about our colleagues getting paid for their opinions or the legality of discussing a patient’s care with fellow professionals in the same institution. Also, during training years, most of us probably do not worry much about the business of orthopedics, ie., salaries, supplies, reimbursement, malpractice concerns and related concerns.

The final career stage for many of us is academic or private practice, or some mix of these. By this stage, we are past the collegiality and collaborative nature of our residency experience that benefitted both us and our patients. We are bound by strict confidentiality laws that often mean that we care for our patients in somewhat of a vacuum. Compared to the training years, clinical practice can be relatively lonely and competitive. As practicing surgeons, we have relatively less time to access the latest didactic knowledge through the various content sites, publications and meetings.

Jon Hyman

Aman Shah

We must also endure the hassles of the complex business, regulatory and legal environment of modern health care. On the positive side, we gain financial reward; compensation at this career stage is at its highest. Another gratification is that we derive enormous professional fulfillment from helping our patients heal and return to a productive life.

The authors believe that an appropriately structured professional network can use information technologies to enhance the benefits of each career stage above, while mitigating the downsides. This was our goal and thinking when we developed OrthoMind, a professional global practice network that is dedicated exclusively to orthopedic surgeons, and goes well beyond providing useful content and information. The legality and ethics of a professional practice network such as OrthoMind, are examined below. These will help in understanding the potential benefits and feasibility of physician participation in this online medium.

Managing risks

Most information-savvy orthopedic surgeons will agree that professional networking has tangible benefits and can increase our professional efficiency. Such collaboration is healthy and worthwhile, and can enrich our professional lives, create efficiencies and benefit our ability to care for our patients.

The question is how to participate in online networks such that full benefits are realized, while minimizing the general risks previously discussed in this forum.

Part of the solution is to identify and choose the correct venue within which to participate, such that surgeons can collaborate with each other while staying in compliance with the various Health Insurance Portability and Accountability Act (HIPAA) regulations, and privacy and security ordinances. Some websites allow physician participants to maintain a level of anonymity via the selection of an alias as a screen name, thus alleviating reducing concerns regarding liability. Other websites do not and insist that a transparent disclosure of the identity of each contributor allows for a better evaluation of each contribution. We found that the best solution is that which offers both, such that a surgeon should be allowed to remain anonymous if he or she chooses, since anonymity can lead to better and more open participation. However, anonymity can also become a barrier to online exchange, unless there is an established baseline of trust in the authenticity and identification of each surgeon participant.

We believe that the foundation of trust and authenticity is the key predicate to facilitating professional participation in social media. As one example, many websites are not limited solely to orthopedic surgeons and allow other professionals to participate. This raises the concern that the individuals with whom you may be discussing a case or a scientific development do not have your level of expertise, which could end up wasting your time, or worse, leading to misunderstandings and confusion that can impact patient care. As another example, some professional websites allow industry access either directly or indirectly by not putting systems in place that prohibit industry influence. This has the clear potential to steer discussions based on commercial bias, thereby impacting both patient care and health care costs. In these scenarios, participation by individuals who do not have comparable expertise or influence, or those who represent the interests of industry, could contribute to legal liability on the part of the treating orthopedic surgeon who may be sharing information online.

As previous articles in this series have pointed out, social networks, like Facebook and Twitter, have inherent risks for the participating physician. Such websites are, however, very different from a professional online network, like OrthoMind. For social networks, breadth and sheer user volume are desirable. For professional networks, selective participation and a relatively narrow focus are part of the value proposition, such that highly trained professionals do not waste their time, and know that the audience is carefully screened.

A broad social network like Facebook or MySpace gives users access to a wide variety of friends and family from different geographic and social demographics. A professional network should give the user access to the specific individuals with similar professional expertise and challenges, and deliberately exclude those whose opinions and insights are not as relevant or commercially biased. This aspect of a professional network makes it easier to ensure compliance with privacy laws, such as HIPAA regulations, and remain true to the values behind these regulations.

HIPAA regulations only apply to covered entities such as health care practitioners and health plans. Protected health information is that which is held by a covered entity and that concerns health status, provision of health care or payment for health care that can be linked to an individual. This information is what the HIPAA rules were designed to secure. Because the raison d’être of a professional network is to discuss the health status, provision of health care and, at times, the payment for health care, it becomes critical that the discussion should not disclose identifiable information. Virtually every professional network bars identifiable information and, as a practical matter, the presence of identifiable information on any website would be a serious matter.

We believe that in professional networking, every online participant is a “covered entity” under the meaning of HIPAA regulations. This evokes another layer of security since the individuals posting or discussing cases are governed by the same regulations and ethics to which physicians are subjected. That said, despite all the safeguards and policies in place with any professional networking site, it is ultimately up to the individual physician to properly manage their online presence and participation. When posting and commenting in professional medical platforms, surgeons should not share anything that they would not want another orthopedic surgeon colleague to hear, and they must exercise reasonable precautions in an online community similar to those utilized in practice.

Future of networking

Participation in a professional global network is primarily centered on a knowledge ecosystem and a level playing field for doctors in a variety of practice types. Professional networking allows the most rapid and widespread dissemination of modern day techniques and knowledge-based insights. Learning in real-time from peers across geographical boundaries and subspecialties can significantly shorten learning curves and earning cycles in a professional career. Using tools available in professional networking websites, surgeons are able to poll each other for immediate feedback and opinions and collaborate on challenging cases.

Professional global networks, particularly those that are specialty specific like OrthoMind, also offer simplified methods of staying current with training schedules and courses, and staying abreast of the most current trends and medical studies. Professional media tools can connect private practices with academic institutions and collect insights from experienced surgeons. Journal reading tools can now scan and pick out articles that are custom-tailored to an individual’s reading preferences. Targeted discussions with colleagues can address a spectrum of topics of relevance to an individual practice.

Professional global networks can allow surgeons to go beyond their own experiences when screening and rating products and services, selecting best practice techniques, negotiating goods and services and understanding the regulatory, legal and business environment that affects them.

As founders of OrthoMind, our idealized vision is to go well beyond the ultimate content website for professionals, to a safe harbor where our colleagues can share ideas and thoughts, learn and collaborate with one another, and hopefully reduce the hassles of running a business while maintaining or increasing compensation and professional gratification through practice efficiency. While we are not quite there yet, conceptually, there is no reason why we cannot achieve this goal of professional social networking, and make interaction with OrthoMind an essential activity for all orthopedic surgeons.

Conclusions

Social networking is here to stay, as a key component of the information age. OrthoMind is a global practice network created by orthopedic surgeons, and accessible only by orthopedic surgeons. Such a platform provides a focused, customized platform where orthopedic surgeons can privately collaborate and rapidly share information, and gain learning. Learning opportunities include emerging trends in the profession and improved ability to deliver patient care. This can be done ethically, with relative privacy and anonymity (if desired), while remaining compliant with HIPAA and related regulations. Today, and into the future, orthopedic surgeons can access tools and resources online that will save time and money in clinical practice, and enhance professional satisfaction.

• B. Sonny Bal, MD, JD, MBA, is associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
• Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.
• Jon Hyman, MD, is a founder of OrthoMind.com.
• Aman Shah, MBBS, is chief operating officer of OrthoMind.com. Both can be reached at 3903 South Cobb Drive, Suite 220, Smyrna, GA 30080; email: admin@orthomind.com.
• Disclosures: Hyman and Shah are on the board of OrthoMind.com, a global practice network for orthopedic surgeons.