TWEETING, FACEBOOK
FRIENDING & BLOGGING:
HOW TO DEAL WITH THE
SOCIAL MEDIA REVOLUTION?
Ann T. Hollenbeck, Esq.
Honigman, Miller Schwartz and Cohn, LLP
660 Woodward Ave.
2290 First National Building
Detroit, MI 48226-3506
(313) 465-7680
ahollenbeck@honigman.com
American Health Lawyers Association
Legal Issues Affecting Medical Centers
and Other Institutions
January 27, 2012
Ann N. James, Esq.
Stanford University
Bldg. 170 3FL
Stanford, CA 94025-2038
(650) 736-1554
anjames@stanford.edu
1
OVERVIEW
 The Explosion of Social Media Generally and
in Health Care in Particular
 Tweeting, Posting and Friending… Legal
Implications for Health Care Providers
 Employment Law Considerations
 Making Social Media Work for Your
Organization
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1
What is Social Media/
Social Networking?
The Explosion of Social Media
 Allows anyone to create and share information,
ideas and experiences through the Web, in the
form of a conversation, often unfiltered.
 Ease and rapidity of use, low cost, transparency
and extremely broad access is both a benefit and
a burden.
 Enables companies of any size to engage
customers economically, efficiently and
effectively.
3
What is Social Media/
Social Networking?
Recent Examples of the Impact of Social Media
Firing of Gilbert Gottfried for Twitter Posting
The protests in Egypt
The Chrysler piece featuring Detroit and Eminem during
the Superbowl
Gabby Giffords tragedy
Delta Assist Twitter account; Bio: “We’re listening round
the clock, 7 days a week. We try to answer all tweets but
if you require a response please visit
www.delta.com/talktous or call 800-221-1212”.
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2
What is Social Media/
Social Networking?
Recent Examples of the Impact of Social Media
THE ROYAL WEDDING
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Official Royal Wedding website
(www.officialroyalwedding2011.org)
British Monarchy Flickr account
(www.flickr.com/photos/britishmonarchy)
Twitter (@ClarenceHouse) (for sending the couple a
message: hashtag#rw2011)
Royal Channel on YouTube (www.youtube.com/the royal
channel)
British Monarchy Facebook page
(www.facebook.com/TheBritishMonarchy)
5
What is Social Media/
Social Networking?

Examples of Information sharing sites and their usage
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Facebook (more than 800 million active users) (700 billion
minutes per month)
You Tube (About 3 billion views per day) (48 hours of video
uploaded per minute)
Twitter (200 million registered users and about 200 million
tweets per day)
LinkedIn (Over 135 million members in 200 countries and
territories)
Four Square: Site tracks location of friends who “check in” to
report the places they frequent. Frequent users earn points
and badges and various venues can claim their listing, which
lets them manage it
Others: MySpace; Friendster; Wikis; Flickr; Podcasts; Blogs
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3
Social Media/Social Networking:
Health Care Statistics

As of October 9, 2011, at least 1,229 Hospitals have
social media accounts
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575 have YouTube accounts
814 have Twitter accounts
1068 have Facebook accounts
566 have LinkedIn accounts
946 have Four Square accounts
149 have blogs
In Michigan, of 60 Hospitals reporting, at least:
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31 have YouTube accounts
35 have Twitter accounts
48 have Facebook accounts
20 have LinkedIn accounts
49 have Four Square accounts
4 have Blog accounts
7
Social Media & Social Networking:
Applications In Health Care

The question today isn’t whether your organization will
engage in social media; the question is when, to what
extent and for what purposes:
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To engage health care stakeholders
To market and brand services and help interested patients locate you
To manage public relations
To engage in crisis management/ communications
To perform professional training and recruitment
To solicit research subjects
To divert valuable resources to focus on the manner in which people
are increasingly spending their time and making their health care
decisions
To determine what patients say about you or your competitors
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4
Social Media & Social Networking:
Applications In Health Care
 Social Network sites continue to grow
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People with chronic conditions share stories and
seek emotional support and clinical knowledge
through online communities
(e.g.,PatientsLikeMe.com; Inspire.com;
MedHelp.org; CureTogether.com; DailyStrength.org)
Doctors or other health care providers meet online to
share information about challenging cases and
solutions that work (e.g., Sermo.com;
doc2doc.bmj.com; Within3.com;RNChat (twitter)).
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Social Media & Social Networking:
Applications In Health Care
 Social Network sites continue to grow
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Researchers come together with patients to learn
about side effects in real-time to improve therapeutic
regimens, to recruit subjects or to post information
regarding clinical research (e.g., “ALS-lithium
experiment” and PatientsLikeMe.com)
Collaborative planning site for public health
emergency (e.g., HHS’s YouTube and iTunes
“Mommycast”; CDC’s @CDCEmergency (twitter);
Fluwikie.com; American Red Cross)
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5
Social Media & Social Networking:
Examples
 Clinical Applications
•
St. Luke’s Hospital in Cedar Rapids also tweeted about a
patient’s hysterectomy and uterine prolapse surgery for
educational purposes and to keep patient’s family informed.
•
Raritan Bay Medical Center performed knee surgery while a
high school student watched and tweeted about the
procedure to fellow high school medical club students.
•
Aurora Health Care (St. Luke’s Medical Center) in Milwaukee
tweeted about a temporal lobectomy. Followers saw
messages from the doctors and patient as well as photos of
the surgery.
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Social Media & Social Networking:
Examples
 Clinical Applications - Others
•
Ohio State University Medical Center tweeted
about a minimally invasive knee replacement
procedure (MAKOplasty) and broadcasted a live
video feed of the surgery. Purpose was to
publicize the availability of its MAKOplasty
procedure to patients and referring physicians and
to educate OSU Medical Students.
•
Rex Hospital in North Carolina tweeted about a
hysterectomy using two smart phones; photos of
the procedure were also provided.
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6
Social Media & Social Networking:
Examples
 Mayo Clinic is a clear leader in social media use
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Facebook, YouTube and Twitter
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Established Mayo Clinic for Social Media and hosting first
major event next month for those interested in social media
applications in health care
SharingMayoClinic
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Enables Mayo representatives to socialize with customers, potential
customers and professional experts to answer questions, post
testimonials, upload professional and informative videos, and discuss
relevant topics.
Utilizes recordings such as a video to highlight the healing power of
music, or a video featuring a patient undergoing her last round of chemo
for breast cancer.
Social Media Policies
o
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Employees
Participation Guidelines
Comment Policy
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Social Media & Social Networking:
Examples
 Hospital Executive “blogging”
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Paul Levy’s – “Running A Hospital” blog
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Former CEO of Beth Israel Deaconess Medical Center (“BIDMC”) in
Boston.
Used social media (blogging) as a management tool. One of the
earliest Hospital CEOs to write his own blog.
Believes social media is useful in managing hospital public relations.

Builds trust and credibility with health care stakeholders (e.g., patients and
consumers).
o
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Humanized the hospital through the blog.
Addressed end of life matters and advocated transparency of clinical
outcomes through the blog.
Paul Levy’s – “Not Running a Hospital” blog
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Post-CEO role - continues to blog about patient care issues and
transparency of clinical outcomes.
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7
Social Media & Social Networking:
Crisis Communications
 Hospitals and healthcare providers can utilize
social media networks to provide real-time
updates to the general public and those directly
affected by a crisis.
 Mark Kelly tweeting real time updates on Gabby
Gifford’s condition and progress.
 Fort Hood shootings
•
Scott & White Healthcare used Twitter to provide up-to-theminute news. Hospital provided updates on emergency room
access and hospital operation status, re-tweeted news from
Red Cross and communicated with news organizations.
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Social Media Legal Issues/Challenges:
HIPAA, Privacy & Confidentiality
 May expose professionals/organizations to
liability under state laws for violation of privacy.
 Health Insurance Portability and Accountability
Act (HIPAA) as modified by the HITECH Act:
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Governs the permitted use and disclosure of protected
health information (PHI) by covered entities (including
hospitals, physicians and other health care providers).
Amended by HITECH Act to provide breach notification
requirements, expand various requirements to business
associates and generally strengthen various privacy and
security requirements regarding PHI.
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Social Media Legal Issues/Challenges:
HIPAA, Privacy & Confidentiality
 Civil and criminal penalties for violation
vary based on nature of violation and
resultant harm.
• Civil fines can range from $100 per violation to
an annual maximum of $1.5 million, depending
on the violation.
• Criminal penalties may include monetary fines
and imprisonment (prison terms can range from
one year to ten years).
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Social Media Legal Issues/Challenges:
HIPAA, Privacy & Confidentiality
 Use of Social Media/Social Networking may pose
risks under HIPAA & HITECH for health care
professionals or organizations that share PHI.
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The issues raised are not new but they are arising in a
different medium.
Physician with Facebook account and profile showing that he
is an ER doctor at XYZ hospital unilaterally posts an x-ray of
a patient he saw with a screwdriver embedded in his hand.
Tweeting information during surgery beyond what was
authorized by the patient.
HIPAA requirements can restrict ability to respond to
disgruntled patients who post negative comments but
consider whether a negative or inaccurate comment creates
an opportunity to solve a problem or correct misinformation
without disclosing PHI.
Blogging by medical students, residents and trainees may
disclose PHI unless carefully monitored
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9
Social Media Legal Issues/Challenges:
HIPAA, Privacy & Confidentiality

University Medical Center employee “resigned” in
December 2009 following hospital determination that
a tweet she sent to Mississippi Governor Haley
Barbour violated HIPAA.
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Governor’s tweet: “Glad the Legislature recognizes our
dire fiscal situation. Look forward to hearing their ideas
on how to trim expenses.”
After learning that the governor previously had a check
up at the hospital clinic during off hours with specially
arranged staffing, the employee tweeted a response:
“Schedule regular medical exams like everyone else
instead of paying UMC employees overtime to do it
when clinics are usually closed.”
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Conflicts between Electronic Activity
and Employment Obligations
 Entrepreneurial web sites are
offering “second opinions” through
web-based interactions
• National in scope
• Licensure and jurisdictional issues
• Violation of commitment for exclusive
practice of medicine by faculty, employed
physicians
• But, can you effectively “just say no”?
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Social Media Legal Issues/Challenges:
Litigation
 Information sharing through social networking
may lead to or impact the course of litigation.
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Plaintiff may review a surgeon’s tweets during surgery
for a potential malpractice claim.
Unanticipated result during surgery being tweeted may
be treated as an admission against interest against a
physician or hospital.
On-line communications during surgery or otherwise
may become discoverable during litigation and are
subject to e-discovery rules.
Defense counsel may discredit Plaintiff’s allegations by
the Plaintiff’s posts on social media sites.
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Social Media Legal Issues/Challenges:
Litigation
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Online communications can give rise to potential libel
and defamation claims and may shift leverage or force
less desirable settlements.
Married ER resident and nurse in PhD program
recently each contributed to a personal blog detailing
the labor and delivery of their first child including
several scathing criticisms of the very hospital and staff
at which they are being trained.
Civil or criminal liability also can arise under the U.S.
Copyright Act for posting third party content information
subject to copyright protection.
Digital Millennium Copyright Act requires internet
service providers to remove infringing content upon
notice from copyright owner.
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Social Media Legal Issues/Challenges:
Ethics
 Other potential liability to patients:
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Health care reform embraces telemedicine (which often
collides with state licensure requirements) and
electronic health records and online communications
are becoming part of the doctor patient relationship.
It is important to define the boundaries between
personal and professional communications between
physicians and “friends” on Facebook, as well as
personal/work e-mail.
Record of electronic communications may support
existence of physician-patient relationship and create
exposure to claims of medical malpractice or patient
abandonment.
Potential licensure implications if doctor “practices
medicine” via online communications with patients in
other states.
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Social Media Legal Issues/Challenges:
Ethics
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Enabling communication may support patient expectation
that professionals are constantly monitoring their health
information online.
Failure to check website regarding a patient’s medical history
and medication allergies may give rise to a malpractice
claim.
Does scope of coverage under medical malpractice
insurance policy include social media interactions? Under
what circumstances?
 Other Legal/Ethical Considerations:
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What duty does a nurse or physician have who is “friends”
with a colleague on Facebook and learns from a post the
colleague has a massive hangover on the morning he is
scheduled to perform open heart surgery?
How does that post impact your brand and reputation?
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Social Media Legal Issues/Challenges:
Marketing
 Compliance with Federal Trade Commission
(FTC) rules regarding endorsements and
testimonials in advertising.
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Requires disclosure of “material connections” for
product/service endorsements.
Applies to endorsements made using “new media”
(e.g. blogs, and social networking sites).
Liability against organizations whose employees
comment on company products or services without
disclosing employment relationship with the
endorsed organization.
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Social Media Legal Issues/Challenges:
Marketing
 Other Potential Exposure for Tax Exempt
Organizations
• 501(c)(3) organizations cannot support
candidates in political campaigns or engage in
certain other philanthropy.
• Employees must understand scope of permitted
and prohibited activities.
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Recent Statistics
 According to recent studies:
• 25% of US companies investigated
exposure of confidential/proprietary
information via blogs/message boards –
o
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24% disciplined an employee for violation of
blog policy within the last 12 month.
11% terminated employee for violation.
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Recent Statistics
 20% of US companies investigated
exposure of confidential/proprietary
information via social networks –
• 20% disciplined employee for violation of
social network policy within last 12 months.
• 7% terminated employee for violation.
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Recent Statistics
 18% of US companies investigated exposure
of confidential/proprietary information via
video/audio sharing services –
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21% disciplined employee for violation of media
sharing/posting policy within last 12 months.
9% terminated employee for violation.
These statistics demonstrate that the use of social media is
clearly creating issues for employers, including but certainly
not limited to, exposure of confidential/proprietary information
on the world wide web.
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Can You Discipline Employees For
Engaging in Social Media?
 Maybe. But be careful. If in doubt,
seek counsel.
 What should you consider first?
• Title VII and Anti-Discrimination Laws
• First Amendment Rights
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Title VII and Anti-Discrimination Laws
 Title VII could protect employees
disciplined for online activity if that
activity reveals a protected
characteristic.
• e.g. blog about religion or racial issues.
• Or if discipline is applied differently based
on different protected class.
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Title VII and Anti-Discrimination
 Delta “Queen of the Sky” case.
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Good case regarding application of policies without
regard to protected class.
In this case a flight attendant for Delta started a
blog entitled “Diary of a Flight Attendant” at
www.queenofsky.net. She posted photographs of
herself in suggestive poses wearing her Delta
uniform.
She was discharged for posting inappropriate
photos while wearing her Delta uniform.
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“Queen of the Sky” case
 Flight attendant sued alleging claims under
Title VII for gender discrimination among
others. She claimed that male employees
who posted pictures of themselves on web
sites while wearing Delta pilot, flight attendant
and mechanic uniforms were not discharged.
 Although this case never went to trial, it
demonstrates the issue – policies must be
applied consistently.
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Employment Decisions

Employers more and more are using the internet to
learn more about potential job candidates.

Why is this a problem? Because you may have to
prove that what you learned did not influence your
decision and violate Title VII and other state law
protections. Job applicants often have information
posted on Facebook and other similar sites that is off
limits for making employment decisions such as
religion, marital status, pregnancy, age, etc.
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Gaskell v. Univ. of Ky.
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In this case, the University was seeking candidates for the
director of the University observatory. The search committee
was considering seven candidates but had sent e-mails stating
that Gaskell was the leading candidate – stating that he is
“clearly the most experienced.”
However, during the search process, one of the committee
members researched Dr. Gaskell on the Internet and found an
article and notes from a lecture – both on “Modern Astronomy,
the Bible and Creation.”
In his complaint, Dr. Gaskell stated that he was asked about his
religious beliefs and it was stated that his religious beliefs and his
“expression of them would be a matter of concern.”
The search committee recommended someone else for the
position.
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Gaskell v. Univ. of Ky.
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This case just recently settled for $125,000 and demonstrates
the care that must be taken in searching the internet and social
media sites when considering a job applicant.
Although it may provide helpful information, it may also provide
protected characteristics of the applicant that you’re better off not
knowing.
Only allow someone who will not be involved in any way in
making the hiring decision to consult social media sites and then
ensure only relevant information is relayed to decision makers.
Also don’t view social media profiles without authorization.
Employees should never ask a third party to give access to
someone else’s site or misrepresent their identity to get access
to someone’s site. (Pietrylo v. Hillstone Restaurant Group)
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First Amendment Rights
 You’ve heard people say, “I can say
whatever I want. After all this is
America. I can write whatever I’m
thinking on my Facebook (myspace,
etc.), my employer can’t stop me from
exercising my first amendment rights.”
 Right?
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First Amendment Rights
 Many who have personal websites
or engage in blogging believe they
are protected in what they say by
the First Amendment. However,
generally, the First Amendment
offers no protection from
termination by private employers.
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First Amendment Rights
 With public employees, the First
Amendment provides some protection.
But even here, the protection is limited
to employee’s comments regarding
matters of public concern or importance.
•
The more the employee’s comments focus on
matters of personal concern, the less such
constitutional protection may apply.
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Social Media Guidelines &
Recommendations
In addition to determining your
social media goals, message
and strategies, it is important
to establish clear policies,
covering both internal and
external communications.
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Social Media Guidelines &
Recommendations
 Be proactive in planning and addressing social
media/social networking.
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To what extent does your organization wish to engage in
social media and for what purposes?
How does your organization want to regulate the use of
social media by its employees and staff for work
purposes?
How will such concerns as stalking and harassing others
on such a site be addressed?
To what extent can an organization regulate social media
used by employees and staff inside and outside the work
environment?
 Develop a social media policy that aligns with
your culture, current policies and that complies
with Federal and State laws.
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Social Media Guidelines &
Recommendations
 HIPAA and Privacy
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Policies should focus on protecting PHI and maintaining patient
privacy. Existing policies may need to be modified to
encompass social media use (e.g., obtaining consent for online
communications) and disclosure of PHI.
Obtain patients’ informed consent in writing before sharing any
PHI beyond uses otherwise allowed by HIPAA. Make sure
informed consent form covers all contemplated uses. Consider
obtaining a separate informed consent for certain social media
uses (e.g., tweeting from the Operating Room).
Include the use or disclosure of PHI via social media as part of
your Notice of Privacy Practices.
Where consent is required and not obtained, any information
shared must be generic enough or de-identified so that patients
are not identified online.
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Social Media Guidelines &
Recommendations
 Professional Liability
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Policies should remind employees and staff that online
communications are not private and may be discoverable in
litigation.
Policies should clearly define the parameters of the
relationships between healthcare professionals and other social
media users.
Professionals should be aware of the pros and cons of making
patients their Facebook “friends”.
o
o
o
Distinguish between personal/social relationships versus
doctor/patient relationships.
Be aware of risks of “practicing medicine online”.
It is generally unwise to establish doctor/patient relationships online; however, with proper consents and disclaimers, it may work
well with patients with whom an existing doctor/patient
relationship exists.
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Social Media Guidelines &
Recommendations
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Professionals should monitor their social media/ networking
sites regularly.
Consider adding broad disclaimers such as a statement that
your organization does not give medical advice via your
website or social media sites and that users seeking specific
medical advice should contact a physician or contact 911 in
the event of an emergency.
American Medical Association’s Social Media Policy urges
use of privacy settings, self monitoring of postings to ensure
accuracy and appropriateness, appropriate patient/physician
relationship boundaries, protection of privacy and
confidentiality, separate personal and professional content,
recognition of potential for negative impact of certain content
on reputations and careers.
Medical professionals may encounter boundary issues with
social media interaction with patients and the limits on care
and communication should
be established by policy.
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Social Media Guidelines &
Recommendations
 Marketing
• Employees advocating for a particular
product, procedure or service must identify
their relationships to the health care
organizations for which they are marketing.
• Employees must post accurate, factual
comments.
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Social Media Guidelines &
Recommendations

Policies should incorporate “User Agreements” for employees,
patients and other users of the websites.
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Specifying privacy policy and general terms and conditions for use or
participation.
Reserving the right to take any actions necessary to comply with all
federal and state laws and exercise that right.
Covering all online activity, including postings, photography, tweets,
etc.
Prohibiting use of site for illegal purposes, or in violation of law.
Reserving right to remove communications that violate user
agreement and exercising that right.
Consider adding a statement that posting information in a public forum
constitutes consent to public discussion regarding the post.
Be transparent about how your organization engages in social media;
do you delete posts? Under what circumstances? Do you respond to
all negative posts?
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Company Policies – Can They Help?
 Be Proactive Not Reactive
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Even if your employees don’t use or access
computers at work, they most likely do at home –
and may be talking about work.
Nearly every employer in every work environment
should consider how social media could impact
their workforce or company.
What steps should be taken now to avoid
problems down the road.
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Company Policies
 How are your current policies affected
by your employees’ use of social media?
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Sexual and other harassment policies.
Confidentiality & Non-Compete.
Trade Secrets
Right to Privacy
Off Duty Conduct
Anti-Discrimination
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Company Policies - Developing
a Social Media Policy
 What is your objective in having a social
media policy? A few thoughts o
o
o
o
o
o
To stop employees from wasting time at work.
To protect confidential/trade secret information from
dissemination outside the company.
To protect employer violations of FTC guidelines.
To address impact of off-duty conduct.
To notify employees regarding the expectation of privacy
at work.
To accept the reality of social media within professional
as well as personal exchanges and to manage that
reality in a reasonable way
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The Policy
 It can be a stand alone policy or part of a handbook.
 Should have an acknowledgement, or be part of the
current handbook acknowledgement.
 Be sure the policy is clear about which uses of
social media are not allowed during work hours or
using company equipment.
 Set clear rules regarding what company-related and
client-related information may and may not be
discussed or disseminated online. This may simply
require an extension of policies already in place
regarding confidential information, trade secrets,
etc.
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The Policy
 Plan a strong and effective educational effort to
assure that all aspects of the medical and academic
community understand the policy. The policy should
be consistent with other company policies.
 Remind employees that they are personally and
solely responsible for any legal liability arising from
or relating to the content of their personal blogs or
websites.
 Employees should be prohibited from disclosure of
the employer’s confidential, proprietary and/or trade
secret information.
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The Policy
 Employees should be reminded that unless
specifically authorized, any time spent
blogging or on personal social media sites
cannot interfere with the employee’s job duties
and must be conducted on off-duty time
unless its done for the company’s benefit.
 Remind employees not to use the company’s
logo or trademark without permission.
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Issues To Consider After Developing
a Social Media Policy
 Who will monitor your social media activity? Use
automated resources such as Google Alerts or
have IT sources assist you to determine other
resources available to monitor social media
activity that may be impacting your company.
 Whose job will it be to monitor violations?
 How will you discipline violators and ensure that
discipline is handled consistently? [Note that
tenure for faculty is an additional challenge for
discipline in academic medical centers.
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The Other Issues To Consider Along
With a Social Media Policy
 Be careful about disciplining employees who
report illegal activities and exercise freedom of
speech. Conduct an investigation and
maintain documentation.
 Provide training for employees/faculty/trainees
regarding the social media policy and areas
such as privacy, trade secret infringement,
etc.
 Re-evaluate on a regular basis. Social media
is developing and changing quickly. Your
attitudes and expectations regarding social
media will likely change overtime – be sure
your policies keep up.
10041444
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The Other Issues To Consider Along
With a Social Media Policy
 Do you have insurance coverage?
•
•
If you get sued as a result of social media activity
will your insurance cover it?
Identify the areas of greatest risk and then check
with your carrier – such as o
o
o
o
Invasion of Privacy
Leaks of credit or other personal information (health
information - PHI)
Copyright and trademark liability
Defamation
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