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Social Media In Health Care Legal Issues


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David Harlow presents HIPAA and Your Social Media Strategy - a Webinar with Jamie Verkamp at (e)Merge

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Social Media In Health Care Legal Issues

  1. 1. 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 1
  2. 2. “On the Internet, nobody knows you’re a dog.” 2 THE HARLOW GROUP LLC
  3. 3. Social media popularity: Google Trends THE HARLOW GROUP LLC 3 global warming sex facebook
  4. 4. 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 4 THE HARLOW GROUP LLC Authentic interaction Genuine Engagement Trust Influence
  5. 5. 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 5 THE HARLOW GROUP LLC
  7. 7. 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 7 THE HARLOW GROUP LLC
  8. 8. 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 8 THE HARLOW GROUP LLC
  9. 9. 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 9 THE HARLOW GROUP LLC
  10. 10. 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 10 THE HARLOW GROUP LLC
  11. 11. 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 11 THE HARLOW GROUP LLC
  12. 12. 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 twentysomething Facebook users who expect everyone to live their lives online 24/7 12 THE HARLOW GROUP LLC
  13. 13. Sample situations 13 THE HARLOW GROUP LLC • 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)
  14. 14. It’s a journey, not a destination 14 THE HARLOW GROUP LLC • Policies and procedures will be revisited and revised ▫ As you gain experience ▫ As your comfort level increases ▫ As technologies and their uses evolve
  15. 15. Resources • HCSM legal roundtable • HCSM legal tweetchat • #HCSM homepage • Found In Cache (hospital SM) • SMUG • HealthBlawg social media posts • HealthBlawg on Twitter You should follow me on Twitter . . . THE HARLOW GROUP LLC 15
  16. 16. Contact David Harlow JD MPH THE HARLOW GROUP LLC 617.965.9732 for contact info in an sms, txt dharlow to 50500 THE HARLOW GROUP LLC 16