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August 2nd, 2010

Legal Issues (Part 2): Unique Issues in Healthcare Social Media

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Editor's Note: This is part of a series by Mayo Clinic attorney Dan Goldman on legal and employee policy issues in social media for healthcare organizations.

What’s Unique About Healthcare Social Media?

Privacy. HIPAA and state privacy laws make social media particularly challenging in healthcare. As well, these strict privacy requirements mean that the stakes are high if your employees act in appropriately in their use of social media. Violations of patient privacy, whether international or inadvertent, can lead to liability under HIPAA and state privacy laws, and to enormous PR ramifications for your facility. Another issue to think through is that privacy laws limit your ability to engage in the social media dialogue, and may prevent you from defending your company online.

If you are a car manufacturer and someone posts on their Facebook page that that your car was defective and caused an accident you can respond on their facebook page (or your own). However, if you’re a healthcare provider and someone posts on your facebook page that your hospital committed malpractice when you treated them, you generally would be prevented by HIPAA and state privacy laws from defending yourself since it would invariably require you to disclose the patient’s protected health information (PHI).

Practice of medicine issues. While this issue is not unique to social media (it’s an issue whenever providers interact with patients and potential patients on the Internet), the nature of social media (personal interaction, dialogue, etc.) means there is an increased risk that providers will unintentionally be seen as practicing medicine or otherwise providing care to patients or prospective patients, which can lead to malpractice claims, and could raise licensure issues if the “patient” is located in a state in which the provider is not licensed. Twitter raises the additional risk that due to its short character limit it’s more difficult to provide any meaningful disclaimers regarding this issue.

Ethical issues of medical professionals becoming social media “friends” with their patients. An outgrowth of the blurring of professional and private personas. Is it ever appropriate for a healthcare provider to become social media “friends” with a patient on their non-work related social media profiles? This question can raise challenging issues regarding appropriate boundaries for the treating relationship, especially for mental health professionals.

In the third installment in this series, Dan will offer guidelines for developing organizational social media policies for employees.

Tags: Legal & Ethical Issues

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