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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  • http://www.myheartsisters.org Carolyn Thomas

    “…in a search for medicolegal references to Twitter and blogging, this perspective has not been brought up before….”

    Well, more accurate to say “NOT YET”. Lawyers and law enforcement agencies are now turning to social media as a matter of routine to check facts.

    Just this morning, I was listening to an insurance exec being interviewed about using Facebook and Twitter to help deny the claims of lying clients claiming to be disabled. Can’t walk without canes? Well, your Facebook holiday photos show you playing beach volleyball and dancing pretty enthusiastically, with nary a cane in sight. Can’t sit for more than 15 minutes? Well, your Facebook entries showed you were chatting and updating your site for three straight hours last night.

    Apparently, some people (not only “vulgar, sophomoric” docs with a “deep-seated resentment of patients and their problems”) are too stupid to be using social media without trained supervision.

  • http://skepticalscalpel.blogspot.com/ Skeptical Scalpel

    @Ann Miller. Thanks for the comment. I agree that the EMR is a fertile ground for plaintiff’s lawyers. A nurse’s note that you never saw could get you into trouble. I’ve seen a lot of copying and pasting that results in nonsense.

    After I posted this blog on my own site, a reader directed me to a 2007 Boston Globe article (http://tiny.cc/gns26) that describes exactly what I said might happen. An MD was anonymously tweeting DURING his malpractice trial and he was unmasked. It’s worth reading.

  • http://bizsavvytherapist.com Susan Giurleo

    I agree with all you say here. I am pro- health care social media and use it myself to share mental health information, but never, ever do I share anything that ever mentions a patient – real or imaginary. Imagine what would happen if a patient comes into your office, leaves after their appt then sees a tweet from their doc saying, “Last patient was….”What if someone in the waiting room sees it and then watches the patient walk out the door? Not anonymous at all. That would probably be perceived as a violation of HIPAA.

    The only ‘safe’ way to use social media for health care is to not talk about patients in public spaces. (this is different if the patient explicitly agrees to participate in a social media intervention). But that shouldn’t be so hard to do, we medical professionals have lots of other things we can talk about….

  • MillCreek

    Flea showed the risks inherent about blogging about your case and malpractice trial and how that could come back to bite you in the ankle.

  • http://skepticalscalpel.blogspot.com/ Skeptical Scalpel

    @Carolyn Thomas I agree with you. As @Skepticscalpel, I tweeted that story yesterday. Here is the link: http://is.gd/LwAwVj. The anecdotes make interesting reading.

    PS: Correction on the Boston Globe story. The MD was blogging anonymously, not tweeting.

  • http://w Dr. Mary Johnson

    I’m in the blogosphere for a reason. I sign my name. I refuse to cower in fear.

    I don’t blog on current patient encounters. I sometimes blog about colleagues (a “Freaky Mennonite” nurse comes to mind).

    When Flea’s blog crashed and burned, I wrote about my own experience with a lawyer who threatened to make an issue of my blogging:

    http://drjshousecalls.blogspot.com/2007/05/fear-not-picking-up-gauntlet-in-medical.html

    An excerpt:

    “The plaintiffs’ attorney in this case apparently “Googled” me (I’m not sure if this was before or after he filed the lawsuit). And let’s just say I “own” my name online. My blog profile and website must have popped up real quick . . . my profile is now “number one” on a simple name search for “Dr. Mary Johnson” . . .

    . . . At one point, the plaintiffs’ attorney postured that he was going to use the blog against me in deposition (specifically the fact that I had been fired by a hospital-owned practice). After all, hospital executives always act nobly and never make mistakes. The clear implication/threat was that he could use the information provided in the blog to “prove” that I was a “bad” doctor.

    I guess I was supposed to cower in terror . . . as so many doctors do when lawyers flex their muscles.

    But I didn’t. I guess my reaction to the threat was atypical (maybe because I’ve been threatened by a lot of blow-hard lawyers).

    First, what happened in Asheboro was/is irrelevant to this case . . .

    Second, I would not mind at all being asked under Oath/on the record about what happened to me . . .

    . . . But here’s the thing about that (and this was pointed out to plaintiffs’ counsel): I’m not sure that putting my blog “on trial” (or trying to capitalize on what happened after I answered a nurse’s desperate phone call about a patient not even my own) would have helped make his case that I don’t care about my patients.

    Third, (as I have blogged) I know something of malpractice . . . of suffering genuine harm due to a medical procedure. So he could feel free to ask me about being the victim of surgical malpractice (at the same “care you can trust” hospital that fired me) . . . not once but twice . . . malpractice that required surgical intervention to repair . . . both times.”

    The lawsuit was ultimately dismissed before trial. The lawyer who made the threats never looked me in the eye.

    I’ve already lost a lot in Courtrooms . . . lies under Oath told by others have yet to be investigated, much less prosecuted. It’s why I’m in this ether and not planning to go anywhere.

    In short, if you’re a doctor online and you’ve got something to say, say it. Then OWN IT.

    Oh, and BE REAL. Real people appreciate it.

  • t petrusick

    I too have seen unseemly comments during the Health Care Reform debates the comments on serma were repeatedly toxic , ugly ,not helpful to the debate I said so and dropped off the site. I had second thoughts and went back after a while and it was still going on. I have not been back.

  • Observer

    Flea’s posts hurt him because they showed he doesn’t listen well (when the crux of the case was how well he communicated with an expert), doesn’t take reasonable advice of colleagues graciously, let alone thoughtully, and had an irascible and defensive temperament . Moreover, he had a clinical approach that emphasized downplaying the possibility of serious illness, and of NOT acting ( which may be well and good in general but as the case was about a missed diagnosis when plenty of signs were present, tended to support a clinical practice blindspot problem)…

    And his reaction to his malpractice case – including his vulgar remarks and fury, demonstrated overreaction to being served with sue papers ( he said he thought he was being arrested for murder) tended to highlight his not being strong on calm and reflective action in the face of crisis.

    He had to settle because his particular posts tended to undermine his case and support that of the persons alleging his fault. Another medical blogger might demonstrate the opposite in his posts, and be helped by them.

  • ninguem

    How about if the doctor keeps a diary, should that be discovered as well?

    • http://www.fancyscrubs.com FancyScrubs

      Good point – different technology, but would that be used as well if found?

  • http://skepticalscalpel.blogspot.com/ Skeptical Scalpel

    @ninguem I am not a lawyer (thank God) but I’ve been sued (and so far, been dropped from all suits without settling or going to trial). I’ve also done some defense expert witness work. Every time I’ve been deposed, the plaintiff’s lawyer has asked me if I kept any notes about the case that were not part of the chart or other evidence. If you keep a diary and do not lie under oath and say you don’t, my understanding is that the diary would have to be produced as evidence.

  • http://www.healthybalancedlife.com Ann Becker-Schutte

    I appreciate the article and the reminder. I also blog and tweet (and comment) with my own name. I don’t have any concerns about doing so, because I don’t put anything into public spaces that I would be uncomfortable with a client (or their attorney) reading. Being helpful, accurate, and compassionate in my social media presence reflects the way I strive to be with my clients in person. Since my social media presence is an extension of my professional identity, it simply makes sense to me that I would use thoughtful consideration about what I put out there. I save my sarcasm and snark for private conversations. :)

  • http://midwifeblogger.blogspot.com Pam

    Can the same not be said for those pages set up on facebook for example The Anaesthetic Registrar or The Obs & Gynae Registrar?

  • http://advocateyourself.blogspot.com Cheryl Handy

    “I have a dream” that one day physicians and patients will again trust each other. All patients want is a honest, communicative physician. Normal, rational (ie majority of) patients do not seek medical help in hopes that the physician will screw up and they will find a pi attorney, spend years in court and “hit the lottery.”

    You physicians know that blogging, tweeting is harmless unless you are giving specific medical advice. Don’t let attorneys that give the legal profession a bad name cause you to feel any more disengaged from the patient population than some of you already do.

    By blogging, physicians are truly bridging the gap between patient and physician. The attorneys, insurance companies, government and others who seek to strain that precious pt/physician relationship must be concerned.

    • http://www.healthybalancedlife.com Ann Becker-Schutte

      Cheryl–I’m a fan of your dream. I think that honest, ethical, committed engagement is critical to the future of our health care system.

  • Eric T.

    Not just blogs, but Facebook too, And not just defendants, but plaintiffs too.

    The first decisions are now starting to come down from the courts on the discoverability of these social media outlets, and you can read about a couple of them from New York here:
    http://www.newyorkpersonalinjuryattorneyblog.com/2010/11/demand-for-facebook-records-rejected-by-ny-appellate-court.html

  • http://skepticalscalpel.blogspot.com/ Skeptical Scalpel

    @Eric T. There are successful legal cases in which Facebook posts played a role. Check out this link: http://is.gd/LwAwVj

  • Doc99

    Where’s the usually loquacious Matt on this issue? Enquiring minds want to know. Heck, I’d answer Yes – I blog/tweet/comment. I also talk to colleagues at hospitals, clinics, meetings. I go to parties and comment there as well. I can expect my defense to ask me about these as well. Finally, I have watched Gladiator Movies and I have seen a grown man. naked.

  • gzuckier

    “Do you blog or tweet?”
    “Umm… sometimes a little, if I’ve eaten Mexican food”

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