Social Media In Health Care Legal Issues

HIPAA and Other Legal Issues and Your Health Care Social Media Strategy
HIPAA and Your Social Media Strategy
Webinar with (e)Merge
November 18, 2009
David Harlow JD MPH
The Harlow Group LLC
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“On the Internet, nobody knows you’re a dog.”
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Social media popularity: Google Trends
global warming
sex
facebook

Why Social Media?
All the cool kids are doing it
Willie Sutton logic: it’s where the money is
Remember: It’s one arrow in the quiver
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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
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Elements of Common-LawLegal 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
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Liability under regulatory schemes . . . like HIPAA, just for example
If you violate the letter of the law (or regulation), and disclose or use information in ways 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
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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
ShaltNots
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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
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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
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Who will be judging me?
Patients and potential patients
Referral sources
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 twentysomethingFacebook users who expect everyone to live their lives online 24/7
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Sample situations
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Disclosure of a child’s HIV status by a parent
Posting PHI in a hospital-hosted community
Live-tweeted surgery going south
Negative comments on hospital website
Poor service
Malpractice
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
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Policies and procedures will be revisited and revised
As you gain experience
As your comfort level increases
As technologies and their uses evolve

Resources
HCSM legal roundtable bit.ly/HCSMlegal
HCSM legal tweetchatbit.ly/HCSMlegalchat
#HCSM homepage healthsocmed.com
Found In Cache (hospital SM) ebennett.org/hsnl
SMUG social-media-university-global.org
HealthBlawg social media posts j.mp/HealthBlawgSoMe
HealthBlawg on Twitter twitter.com/healthblawg
You should follow me on Twitter . . .
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Contact
David Harlow JD MPH
harlowgroup.net
healthblawg.typepad.com
twitter.com/healthblawg
david@harlowgroup.net
617.965.9732
for contact info in an sms, txt dharlow to 50500
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Social Media In Health Care Legal Issues

by David Harlow on Nov 17, 2009

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Social Media In Health Care Legal Issues — Presentation Transcript