Physician social networks and liability risk

I recently wrote about the hidden dangers of physician social networks, and how private posts can potentially become public at a later date.

With the recent controversy surrounding former Washington Post blogger Dave Weigel and Journalist in mind, I commented that,

passionate, controversial debate is frequent on Sermo, along with discussion of patient cases. Part of what makes the site so provocative and insightful is the fact that the conversations are shielded from the public.But there’s no guarantee that will always be the case, as “perhaps a physician-turned-hospital administrator who went looking for dirt on a trouble-making internist, [or] a malpractice attorney who used his brother-in-law’s log-on ID to troll for cases,” are both plausible scenarios.

Bryan Vartabedian has a more positive take.  He likens physician social networks to water cooler talk, no different from doctor lounges of days past.  Physicians there often discussed patient issues informally, and engaged in provocative conversation on various health issues.

It’s not often that a doctor can get sued over this:

The medical malpractice attorneys I’ve consulted on the matter have suggested that a plaintiff must prove that the physician has a duty to the patient in question.  And that duty only comes through the establishment of a relationship.  Or, in other words, it must be shown that the doctor is responsible and obligated for the patient’s care.  And in the case of the curbside consult there is no duty on the part of the doctor interrupted during his coffee break.

Dr. Vartabedian argues that the malpractice risk of physician social networks is no different, and thus, doctors should be less concerned about potential liability.

There is one difference, however.  Every conversation on a social network is recorded electronically, and can potentially surface in the future.  Taken out of context, it can present the doctor in an unflattering light.  No such record exists from a physician lounge conversation.

I would still advise physicians to be careful about what they say behind closed virtual doors.  Be aware that after you hit the enter key, whatever typed is singed into cyberspace forever.

 is an internal medicine physician and on the Board of Contributors at USA Today.  He is founder and editor of KevinMD.com, also on FacebookTwitterGoogle+, and LinkedIn.

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  • http://www.occampm.com/blog Michelle W

    “But if it’s print, it’s libel,” I was thinking, just as you said it yourself. I agree completely that social media of all kind is just a virtual form of what happens every day in person … the important difference being, of course, the printed nature of it. Divorce court is full of Facebook evidence right now. I wouldn’t be shocked to hear about it being used in malpractice either.

  • http://www.howardluksmd.com/journal Howard Luks

    One of our favorite #hcsm twitter attorneys David Harlow (@healthblawg) recently put up a guest post on my blog on a very similar topic. I perosonally think the fear of liability or med mal risk is a bit overblown. HIPAA is HIPAA, whether it is a curbside consult or an online disucssion. But, you are correct… we need to realize that when we hit the send button…. it is *out there* permanently.

    David’s comments are very interesting for physicians contemplating engaging their patients online via FB, twitter, etc. I think it is a very worthy read and may be worth reposting on your site. For those interested in David’s comments… the link is: http://hjluks.posterous.com/to-friend-or-not-to-friend-guest-post-by-davi

  • http://www.kevinclauson.com Kevin Clauson

    Kevin,

    We recently published “Pharmacists’ Duty to Warn in the Age of Social Media” in AJHP http://bit.ly/cZYbMi and an accompanying journal podcast http://www.ajhp.org/misc/podcasts.dtl

    This Commentary piece provides an overview of establishing a valid practitioner-patient relationship and the subsequent duty to warn, with an eye towards these developing via social media channels that you may find of interest. It is aimed at pharmacists vs physicians, but many of the core elements are similar.

    Kevin

  • MillCreek

    As a healthcare risk manager, I like to point to the example of Flea, in terms of what you write online coming back to bite you in the ankle. And I can pretty much guarantee that these writings are subject to discovery in the event of a malpractice case being filed. Admissibility at trial may be a different matter, but wide latitude is given to discovery.

    Having said this, I think the benefits to patient care outweigh the relatively minimal liability risk, when it comes to discussing cases and soliciting input on clinical management. Just don’t type anything that would embarass you when printed out and put on a 6′x4′ easel board for the jury to read.

    • paul

      i’ve never really understood what Flea mocking the jurors and opposing lawyer on his blog had to do with the facts of the case and whether or not he committed malpractice.

      • Matt

        I don’t think anyone ever said it did. The parties settled before liability could be decided. Confidentially, of course.

  • Doc99

    Please don’t demean Sermo with a comparison with journolist. Journolist was a group of self-proclaimed liberal media types who actively conspired to slant the news given the folks – spiking some stories, emphasizing others. These so-called journalists then became a stealth arm of one wing of one political party. Sermo is no Journolist.

  • Jason

    I hope the medical community doesn’t give up on social media. The problem is not social media itself, but rather finding a way to make social media open yet secure. If sites used better security measures such as thumbprint logins or the like, then social media would become an excellent tool for the medical profession. I imagine a large medical tech company or some media conglomerate like google will eventually provide us with this improved secure social site. Then many of these arguments will become defunct.

  • stressedmd

    One major problem is that Sermo has no opt-out. You can deactivate your account but it’s all STILL THERE, no change. Accessible to everyone. You can never make what you’ve said go away. It’s easy to forget you’re talking to an audience of sometimes hostile drs, hospital admins, malpractice lawyers, etc (some are MD/JDs who are members of Sermo).

    The real problem lies in Sermo’s discrimination between users — if they like you, they’ll take away entire threads and change your username to protect you. If they don’t, you can e-mail and call them till you’re blue in the face to get them to uphold their own privacy agreement. They simply won’t answer. They don’t give a d***.

    You are entirely dependant on the haphazard good will of the owner, or lack thereof. His personal likes and dislikes. It shouldn’t be that way, especially not when dealing with physicians, who are extremely sensitive to privacy issues, but that’s the case. There’s no agency to oversee this. You’re entirely powerless to do anything to protect yourself. It’s an awful feeling. I guess there’s some comfort to be found in the fact that the numbers of users they have is, I estimate, 1% of what they claim – go look through random accounts by changing the number in the url, and see what I mean. So the actual impact might be a lot less than you fear. Still, that’s no reason for a company to betray their promise to protect your anon and ignore you when you e-mail them for 6 months about your concerns.

    In summary, I feel that participating in social media is a HUGE mistake, one that may cost you everything.

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