Physician blogs, doctors on Twitter and a malpractice trial

You are in the middle of a deposition.

Plaintiff’s lawyer asks, “Do you blog or tweet?” Before you answer, consider this. If you blog or tweet and respond in the affirmative, I believe anything you have ever posted would be subject to discovery by the plaintiff. Oh, you post anonymously? Would you then lie under oath and say you do not blog or tweet? For many physicians, admitting that you blog or tweet might not be a problem. But in my short career as a blogger/tweeter, I have read some things that frankly would not enhance a malpractice defense if projected on a large screen in front of a jury.

I will allow that I am skeptical and sarcastic, but I do not think I have posted anything that is derogatory to a patient, either generally or specifically. There are some very popular anonymous doctor-tweeters who post some scathingly negative comments about patients. Even if a patient could not be identified, the tone of some of these posts implies a deep-seated resentment of patients and their problems, not to mention many are vulgar, sophomoric or both. OK, some of them are funny as well, but the humor would be lost in a courtroom. Some of these tweeters disseminate prodigious numbers of posts per day perhaps suggesting that they are not always focused on their work.

I have followed several medical bloggers who post clinical anecdotes, which are essentially case reports. Despite disclaimers stating they are not about real patients, it seems obvious that they are. If the subject of one of these case report blogs decides to sue, it might be difficult to convince a jury that the blog was about a fictitious case. And this type of publication might be considered a HIPAA violation especially because it is unlikely that a blogger would have obtained institutional review board permission to publish the case report.

By the way, if you blog or tweet anonymously and answer falsely that you don’t, you better never have told anyone that you do. A lie under oath that is discovered tends to undermine your credibility quite a bit. (Defense lawyer, “Your honor, may we have a short recess while I talk to my client.”)

As far as I know from an attempt to search for medicolegal references to Twitter and blogging, this perspective has not been brought up before. What do you think?

Skeptical Scalpel is a surgeon blogs at his self-titled site, Skeptical Scalpel.

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