Social media: Observe legal developments as the technology expands

B. Sonny Bal

Lawrence H. Brenner

Given the extraordinary, explosive growth of social media, it is scarcely surprising that physicians are starting to use these new tools just as everyone else. Doctors use social media for all the reasons that the rest of the world does, including communication with friends, sharing news, telling jokes, exchanging opinions and displaying photographs from this summer’s vacation.

Doctors are also starting to use these media, however, for professional purposes that include discussing tough cases with colleagues, expressing professional insights or sharing patient stories. Is this latter use of social media prudent and, if so, what are the associated risks?

Nature of social media

The unique quality of social media is rapid penetration. To an extent that television never achieved even at the height of its glory, and to an extent that newspapers can merely reminisce about, Facebook, Twitter and their various competitors and imitators provide access to the eyeballs and minds of readers around the world at the speed of electrons. Whether the underlying information is valid or not, it can be disseminated almost instantaneously today, while ignoring local and national boundaries. It was unthinkable to cross some of those boundaries a while ago, and in some countries, it still is. One result of this information transmission revolution is that reputations can be made, or destroyed, overnight.

In general, the public health is advanced when people learn more about their illnesses. So is the health and well being of the individual who is empowered by greater knowledge. The social media provide an extraordinarily powerful way to achieve those goals. For many physicians, such an opportunity is attractive. After all, the very word “doctor” comes from the Latin for “teacher.” Social media provide unparalleled opportunities to teach, and hence to serve patients, current or prospective, and enlighten the community about health and related concerns.

Joseph P. McMenamin

The underlying risks

Using social media, however, is not without risk, especially in a climate as litigation-prone as the United States. By reaching large numbers of people and opining on medical issues, doctors may come more or less close to providing the advice that is their stock in trade. Could someone accessing a Facebook page and reading on a post from Dr. Bones about, say, management of back pain, claim that he had become the patient of Dr. Bones? After all, one communicates with a physician to understand one’s illness or symptoms and to get advice about how to improve them. How much of a stretch is required to equate the advice Dr. Bones offers on Facebook with the advice he dispenses daily in the clinic?

From a lawyer’s standpoint, this question is not merely philosophical or theoretical. For once, I am a patient of a physician, he owes me a duty; once he owes me a duty, he can breach that duty; once he breaches that duty, he or she may be liable to me. By no means does that mean that to use social media to discuss professional topics is to issue engraved invitations to the plaintiffs’ bar to hang out in your waiting room. It does suggest, though, that a bit of caution, a bit of thought, may be helpful here just as they are in almost any other circumstance.

An ounce of prevention

Because technology related to social media is evolving at such an extraordinary rate, and because adoption is both fast and accelerating, this is an area where articulating hard-and-fast rules is very difficult. Still, as a fairly good general proposition, the more patient-specific a particular bit of advice is, the more likely it could be construed as advancing or even creating a doctor-patient relationship.

The more general the discussion, the harder it would be for the proponent to argue that the information about the back pain was furnished in the context of a doctor-patient relationship. If no such relationship exists, there is no risk of malpractice liability. It may be sensible, then, to stick to a general discussion, and to avoid soliciting or responding to unsolicited personal data such as those one acquires in the course of a medical history and physical examination, for example. Disclaimers specifically absolving oneself of any professional relationship, and clarifying that communication is intended only to advance a general exchange of information also may be helpful.

Some social media impose drastic restrictions on the number of characters that can be posted. It is a rare medical topic indeed that can be accurately or adequately described in 140 characters. If a reader claims to have relied upon such a sparse description, and comes to harm as a result, would a legal cause of action arise? Is it possible that the creative plaintiff’s lawyer would attempt to bring in the entity that imposed the 140-character limit as well as the author of the piece? If there is one lesson this author has learned from battling plaintiffs’ counsel for the last quarter century, it is to never underestimate their creativity; the possibilities of creating novel theories of negligence are vast, and social media present an entirely new forum for doing so.

Social media

As with email, social media posts and tweets are often fairly informal. The physician has to be careful, however. Those who “friend” him may not in fact be his “friends” as that term is ordinarily understood. If you are going to use the social media to hold forth on the topics you spent your youth mastering, then you should treat those subjects with all the care and professionalism you would were you writing a consult in the chart. In fact, the model of visualizing patient communication, however informal, as the writing of a formal consult note in the chart may be particularly helpful in cautiously and prudently managing physician-patient contact through social media.

A particularly thorny problem relates to medical emergencies. On the one hand, social media are attractive as quick, efficient means of communicating at a time when communication may be urgently needed. On the other hand, physical examination is not possible through these means and data may be fragmentary. The patient, or his spokesman, may be too distressed to provide a coherent history.

The patient may also be unable to use the technology properly as a result of injury or turmoil. Time may well be better spent in getting hands-on care, time all too scarce in such circumstances. Case law related to how the judicial system will view medical emergencies and the use of social media in such is simply absent at the present time; one can only speculate.

Concerns about privacy

The privacy of medical records is an increasingly serious concern. There have been numerous reports, for example — and lawsuits — arising from disclosures about the medical records of celebrities at hospitals where those individuals are cared for. When records are available electronically, they can of course be circulated around the world instantaneously. Since the social media permit posting pictures, the privacy problem could be aggravated if someone were to post diagnostic images along with text.

It is now possible for individuals at great remove to see and speak with each other in real time at no cost. Unfortunately, however, it is not clear whether such communications are Health Insurance Portability and Accountability Act-compliant. Those who create and sponsor these services generally make no such claims. Physicians tend to be sensitive to privacy concerns and guarded in their communications. There have been exceptions, however, including some mischief worked on social media by medical students who frankly should have known better.

Nor are these the only considerations. It is not at all clear what sort of malpractice coverage the ordinary policy provides for claims based upon statements made on social media. The author is aware of at least one carrier that explicitly excludes coverage for torts or claims arising in such circumstances. Without having done a survey, a reasonable guess is that most policies are probably silent on the question — which could well mean that, to get an answer, litigation with one’s own carrier may be necessary. Such a prospect is distinctly unattractive, as it would be costly in time and money and emotional capital, and it might well be a battle fought in parallel with the battle with the self-proclaimed “patient” whose claim is what triggered the dispute with the insurer in the first place.

Jurisdictional concerns

Use of the social media in a manner that approximates the practice of medicine could give rise to claims of unauthorized practice if the reader/visitor happens to be in a state or jurisdiction where the physician is not licensed. Last month’s Orthopedic Medical Legal Advisor column stated that a predicate to liability is that the defendant, by his/her conduct and actions, must do something to create sufficient contacts with a forum such that personal jurisdiction can be exerted by a court. How will you know that your correspondent is in a state where you are licensed? What are the laws in that state respecting unauthorized practice, and how does that jurisdiction define medical practice? The state where the patient is may assert the authority to discipline the doctor even though he is not licensed there.

It’s not the purpose of the author to dissuade you from using social media. It is a goal, though, to suggest that you proceed cautiously and thoughtfully, and that you keep your eye on legal developments as the technology expands. In next month’s column, we will examine safe havens in social media where orthopedic surgeons can communicate, chat and exchange information in a secure, protected and confidential environment.

To discuss this topic with your colleagues, join the discussion at www.OrthoMind.com.

Editors’ note:

Dr. McMenamin’s article is the second of a three-part series. Read part one, which covered the fundamental concepts related to court jurisdiction, specifically the conditions required before a court can properly exercise jurisdiction over a party. Next month, Jon Hyman, MD and Aman Shah, MBBS, will discuss safe harbors whereby orthopedic surgeons can participate in social media, while managing the risks that Dr. McMenamin has thoughtfully set forth in this article.

• 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.
• Joseph P. McMenamin, MD, JD, is a partner in the law firm McGuireWoods, LLP. can be reached at McGuireWoods Law Firm, One James Center, 901 East Cary St., Richmond, VA 23219-4030; email: jmcmenamin@mcguirewoods.com.