The EHR Report

The EHR Report: Communication, social media, and legal vulnerability


Social media is now a part of everyday life. From Twitter, with its 140 character limit, to Facebook to Linkedin, there is a world of possibilities for communicating with friends, family, colleagues, and others online. Communication is good, but electronic media is a minefield for medical professionals who do not think carefully before they post.

The stories in the news about health care professionals who have posted obviously inflammatory material online, perhaps in a fit of rage, and have had their careers impacted or ended are just the tip of the iceberg. HIPAA violations have received a good deal of attention, with a well-known example being the doctor who was accused of posting a selfie with Joan Rivers, who was unconscious on the operating table. These examples, however, represent obvious violations of HIPAA and are infractions that most physicians would readily identify. Other examples may not be as obvious.

Dr. Neil Skolnik

Dr. Neil Skolnik

If a professional posts information on social media about a patient, he or she is not insulated simply because the patient’s name was not included. Suppose a professional creates a post on social media about a procedure or interesting presentation that day, and a family member or friend of the patient sees that post and knows that the patient was seeing that doctor that day and connects the dots. This could constitute a HIPAA violation.

We know of one case where a nurse on the staff of a physicians’ office posted on Facebook that work was grueling that day because he felt under the weather with suspected flu. This may seem, at first, to be an innocuous communication. And that’s all it was, until, the son of an immunosuppressed man who had an appointment at that doctor’s office was flabbergasted to hear from a mutual friend that one of the nurses in the office was at work despite having the flu. He demanded to speak with the office manager and made sure that his father was not seen by that nurse. It may seem like an unlikely coincidence, but, in medical-legal circles, unlikely events occur all the time.

Brett C. Shear, Esq.

Brett C. Shear, Esq.

Often, we think that maximizing our privacy setting will ensure that unwanted people will not see what is posted. That is not always the case. With social media, we should assume that nothing is truly private. For example, on Facebook you can opt to allow only your friends to view what you post. However, if your friend comments on one of your posts, that friend’s friends may then be able to view the post. Your “friend” could, also, allow anybody to see what you have posted on Facebook. In a recent case, an administrative assistant happened to be friends on Facebook with an expert from the other side and was able to find compromising information that was used in that expert’s cross-examination at trial. Our social networks are often quite large, and it is not unusual to have hundreds of “friends.” These people typically include acquaintances of whom we have only casual knowledge. It is impossible to know how private information can be interpreted by people we do not know well or how that information may be used.

Many people who use social media will check in or post when they are out with friends or colleagues blowing off steam. For example, you might post something on social media about a holiday party you are attending. But, consider what happens if, at work the next day, something goes wrong, your care is called into question, and a lawsuit ensues. Your post may be innocent, but it now falls into the hands of the patient’s attorney. When you are having your deposition taken, the lawyer pulls your social media post out of a stack of papers and grills you about where you were, what you were doing, how late you stayed out, whether you were drinking, how much, and so on. Maybe you explain to him that you were only at the holiday party for an hour and did not have a single drink. That attorney, however, is not required to take your word for it and can ask you who you were with. All of a sudden, your friends and colleagues are being served with subpoenas for their depositions and being examined about what you did that night. Possibly, the lawyer is sending a subpoena for your credit card receipt and the restaurant’s billing records to determine what you ordered that night.

You should never rely on the false assumption that even “private” messages sent directly to other people will truly remain private. One of us was recently involved in a case where this worked to our advantage. A 30-year-old woman claimed that her family doctor never recommended that she see a gastroenterologist. A friend of the patient testified in a deposition that the two of them had discussed her medical care in private messages on Facebook. After the court ordered that the patient turn over her private Facebook messages, we learned that she told her friend that the doctor had indeed made the recommendation for her to see that specialist.

This cautionary tale doesn’t just apply to social media. Keep in mind that, if you are involved in litigation, attorneys can subpoena the records from your cellular phone provider. All cell phone text message are archived by the cellular provider and can be retrieved under subpoena. You may innocently be blowing off steam to a spouse or friend about a difficult patient or bad outcome but later have those text messages used against you in litigation.

The various social media platforms can be great tools for all kinds of professionals to share interesting information and further their professional development. However, everybody, especially the medical professional, needs to think before they post or send a message. We must also remember that, once information is out in cyberspace, it remains there and can never be truly erased. In other words, you can never unring the proverbial bell. It is important to think about the potential impact of that communication before posting and electronically communicating. Only communicate something that you would be comfortable defending in court.

Dr. Skolnik is professor of family and community medicine at Jefferson Medical College, Philadelphia, and associate director of the family medicine residency program at Abington (Pa.) Jefferson Health. Mr. Shear is an associate attorney in the health care department at Marshall Dennehey Warner Coleman & Goggin in Pittsburgh. He represents physicians, medical professionals, and hospitals in medical malpractice actions.

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