Most Americans – approximately 81%, in fact – own a smartphone, reports Pew Research Center. These devices share information at a dizzying rate of speed and flexibility. The new world of social media has transformed our society, and subsequently created both significant opportunities and profound challenges for the healthcare community. It’s just one of the emerging risks spotlighted in the 2019 Benchmark Study of Healthcare Professional Liability Claims from Zurich North America.
It is becoming increasingly common for patients and their families to record interactions with healthcare providers. The intent is usually understandable: Photographs and/or recordings can help patients and loved ones review discussions about unfamiliar and/or stressful topics, and remember discharge or post-visit instructions.
However, this practice can introduce concerns, among them the protection of a patient’s privacy. A guiding principle on which the healthcare profession is founded is the assurance that a patient’s information is privileged. Improperly sharing or inadequately protecting patient information can be a betrayal of that trust.
Furthermore, privacy rights are not just for patients. Some healthcare providers question the real intent of recordings or photos, fearing for their safety as well as the integrity of their professional reputation.
In our digitally connected world, it’s not unusual for bystanders to raise their smartphones and record activity in emergency departments or other areas of a hospital, texting about and livestreaming videos involving patients they may not even know. It is also not uncommon for patients to make secret audio recordings; federal law, 38 states and the District of Columbia have “one-party consent” laws that permit audio recording, although some have caveats, such as distinguishing between electronic and in-person communications.
In one example, a patient recorded her own surgical procedure and claimed it captured inappropriate sexual comments directed at her. When the recording was ruled unintelligible, the suit was dismissed. In another case, the recording was clear, and the matter settled out of court. Legal or not, hidden cellphones create a host of potential risks for practitioners as well as patients, such as being unsafely stowed beneath sheets in an operating room.
This is not the only way social media can be used against healthcare providers. Another recent example involved an individual who had a huge following on a social media platform. Unhappy with his experience in an emergency department, he encouraged his followers to call the hospital to complain. The phone line was busy for days, at the expense of individuals seeking care and creating delays and distractions for the hospital staff.
Information found on social media is also replacing the practice of retaining private investigators. Both parties to a lawsuit now routinely conduct social media investigations as they evaluate the validity of their cases. A frequent plaintiff’s tactic is to instruct new clients to immediately take down all social media accounts. They are also told to ask family and friends to cease posting information about them. A patient’s own postings can be used to rebut their alleged physical injuries when online photos or postings document them engaged in activities such as grocery shopping or sports.
Searching the social media accounts of all relevant healthcare providers involved in a client’s care is also common. This might include an unrelated post to a physician’s social media page at a time when their patient’s condition was deteriorating. (In one case, the plaintiff argued the physician was distracted at a critical time in the patient’s care.)
The impact of social media extends beyond the parties. At some trials, despite a judge’s orders, jurors conduct online searches for information about the case and the parties. When the court finds this has occurred, it can result in a mistrial.
All these scenarios create problems for healthcare practitioners. The absence of national standards regarding the use of recording equipment adds to the complexity. For this reason, it’s crucial to be familiar with your state’s laws concerning audio and video recordings.
Some additional advice from a recent article from the American Academy of Pediatrics
includes developing a policy for yourself and/or your organization as it relates to recording practices. Discuss it with your legal team or a malpractice attorney and, once created, share it with all stakeholders. Should you discover questionable online content involving yourself or your organization, avoid responding on social media or in public forums. You should also report content that concerns your professional reputation or that of your organization to your social media department or risk manager.
The age of technology has delivered countless benefits but also some sobering realities. Among the greatest challenges healthcare providers face is harnessing the power of digital communication and social media for good, while managing the potential pitfalls. Does the promise outweigh the perils? Given these new realities, the answer is largely up to each of us.