David Harlow on Social Media In Health Care Legal Issues - OHA PRMS 111209

New Media: Same Old Potential Pitfalls Harnessing New Media Tools PRMS Session at Oklahoma Hospital Association Annual Meeting November 12, 2009 David Harlow JD MPH THE HARLOW GROUP LLC

“ On the Internet, nobody knows you’re a dog.”
THE HARLOW GROUP LLC

Uses of Social Media
Preliminary questions:
What are your strategic goals?
How can social media help you achieve them?
What resources will you devote to this effort?
How will you structure this effort?
Involving the lawyers early on can help avoid costly retrenchment and/or errors later

Elements of Common-Law Legal Liability
A duty that one party has to another party
A breach of that duty
Harm to the second party
Causal link between the breach of the duty and the harm
Example: A physician has a duty to provide services according to a standard of care; if she provides lesser services and her patient is injured as a result , that’s malpractice

Liability under regulatory schemes . . . like HIPAA, just for example
If you violate the letter of the law (or regulation), and disclose information that you should not, you are liable to the federal government
Fines
No third party liability
Under state law there may be liability to patients as well for violating confidentiality
And remember, patient claims that go to court will be heard by a jury

Common Law & Regulatory Liability: Based on Definitions of Relationships
Therefore . . .
Must clearly define the relationship between health care providers and social media users
Terms of Service
Policies and Procedures
Must be tailored to your organization
Must stay within the bounds of that relationship
Shalts
Shalt Nots

Keys to avoiding liability
Patient consent where relevant
Notice of Privacy Practices (HIPAA NPP) should address social media
How it is used
Degree of privacy that may be expected
Express notice not to use for emergencies; statement that channel; is not monitored 24/7
NPP and internal P & P should be consistent
Remember: the fact that a patient-provider relationship exists is itself PHI

Keys to avoiding liability (cont’d)
Good judgment
Do not practice medicine on line . . .
Unless the patient has given informed consent in advance (and even with consent, clinical interactions should not be in a public forum)
Emergency exceptions?
Similar to what we would do “IRL”
Do not try to establish clinician-patient relationship online . . .
Unless through a secure, private portal
Clinician-patient communication should end up in EHR

Who will be judging me?
Patients and potential patients
Regulatory bodies
A jury of your peers?
Think about what policies and procedures you want to have on the books and fully implemented before you end up on trial in front of a jury made up entirely of twentysomething Facebook users who expect everyone to live their lives online 24/7

Sample situations
Disclosure of a child’s HIV status by a parent
Posting PHI in a hospital-hosted community
Live-tweeted surgery going south
Accepting negative comments on hospital website
Responding to a patient’s tweet
Positive: “I’m cancer free one year later”
Negative: “I’ve been waiting in the ED for hours”
Emergency communication on a Facebook page
Notice of a GSW via Twitter to an MD (mandated reporter)

It’s a journey, not a destination
Policies and procedures will be revisited and revised
As you gain experience
As your comfort level increases
As technologies evolve

Resources
HCSM legal roundtable bit.ly/HCSMlegal
HCSM legal tweetchat bit.ly/HCSMlegalchat
#HCSM homepage healthsocmed.com
HealthBlawg social media posts j.mp/HealthBlawgSoMe
HealthBlawg on Twitter twitter.com/healthblawg
You should follow me on Twitter . . .

Contact
David Harlow JD MPH
harlowgroup.net
healthblawg.typepad.com
twitter.com/healthblawg
[email_address]
617.965.9732
for contact info in an sms, txt dharlow to 50500

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David Harlow on Social Media In Health Care Legal Issues - OHA PRMS 111209

by David Harlow on Nov 12, 2009

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David Harlow on Social Media In Health Care Legal Issues - OHA PRMS 111209 — Presentation Transcript