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Any of Your Online Postings Could Be 'Exhibit A' in Malpractice Trial
Social Media Can Be 'Very, Very Damaging'
A lawsuit involving a terrible outcome, but good emergency department (ED) care, seemed "very defensible" to Matthew Rice, MD, JD, FACEP, former senior vice president and chief medical officer at Northwest Emergency Physicians of TEAMHealth in Federal Way, WA. Rice was about to recommend that the hospital vigorously defend the case, but it never got to that point.
During the discovery process, hospital administrators learned of the emergency physician (EP)'s support for legalization of marijuana, as well as his prior use of the drug, says Rice, because his online postings on the matter were unearthed by the plaintiff's attorney.
"The decision was made at the senior level to settle the case. They were worried about the risk of the information being made public in the process of disclosure," says Rice. "That, in my mind, is a very expensive example of how social networking had a negative impact on a case that I believe was very defensible."
Risks Are Many
The liability risks of social media use by EPs and nurses are "many," according to Michael Blaivas, MD, RDMS, professor of emergency medicine in the Department of Emergency Medicine at Northside Hospital Forsyth in Cumming, GA.
"Things that could be harmful in patient, personal, or contractual relationships have now become not just hearsay or something that is accidentally overheard, but are documented in writing for anyone to view, review, and keep a record of," says Blaivas.
Rice says an EP's liability risks involving social media can be significant, "if those activities and information provided are not carefully measured against the professional, legal, and social expectations for physicians."
Rice adds that he is aware of several EPs whose careers were impacted negatively because of personal postings. To minimize the chance of problems, Rice says EPs should avoid any postings that they would not want colleagues, patients, opposing attorneys, employers, or loved ones to know about.
Corey M. Slovis, MD, professor and chairman of the Department of Emergency Medicine at Vanderbilt University Medical Center in Nashville, says that if EPs post information on public sites they should "be prepared for the consequences, particularly in this age when people can literally see you in almost any situation if you're not careful."
"Occasionally, suboptimal outcomes occur and a lawsuit might ensue," says Slovis. "Any photos or comments made by any of the health care providers in the room could be used in that lawsuit."
Worse, says Slovis, an EP and the hospital could be sued for a breach of privacy, emotional distress, and punitive damages for blatant disregard of the patient's privacy. Another possibility, he says, is that an EP could post inaccurate information on a patient, resulting in a suit for slander and defamation.
"The reality is that once you release something on a social network, it becomes a public document," says Rice. "There are very few protections that are associated with this, unless there is some violation of the law or an issue of national security."
Regardless, says Rice, "once it's out there, as they say, 'the horse is out of the barn.'" Rice notes that patient privacy regulations were enacted because some health providers weren't protecting patient information as vigorously as they should have. "Some 15 years ago when they were working on the issue, before it became law, it became clear that patient medical records needed to be protected," he says.
Likewise, EPs have a professional responsibility to protect a patient's private information, whether it's on paper or electronic, says Rice.
Rice notes that even very confidential information, such as national secrets, turn up on the Web, and once they do, "they are known to the world and you can't stop them or retract them. Even if they are not appropriate or even illegal to show, once they are out, the damage is done," he says.
The question for EPs to answer, says Rice, is "Are you willing to stand by your position or advocacy that you espouse, whatever the cost? That is a price that you should be aware could occur."
"Our lives become very open when we discuss things publicly, whether it relates to medicine or anything else that we do," says Rice. "Lawyers can access that information."
Plaintiff's attorneys can use personal postings by EPs to raise real questions about ethics of staff, competence, drug abuse, or alcohol abuse, says Blaivas.
"From personal experience with multiple expert depositions, many lawyers spend considerable time looking through everything they can on the Internet about all witnesses, including experts and those being litigated against," Blaivas says.
Blaivas says to imagine a jury being shown an image of an ED staff member who appears drunk, or an attorney reading a text aloud making fun of a patient or otherwise conveying an uncaring attitude.
"Not only do lawyers find this stuff, but if you have a complaint filed against you, medical boards can find things also," warns Blaivas. "Suddenly, a silly complaint from a patient may have some weight to it."
In an adversarial system that pits one side against the other, says Rice, the side that opposes you is going to try to use any information it can to its best advantage. "When we put things out there that could make us look less than professional, such as an impairment or something that could impact us in our professional endeavors, that makes us very vulnerable in a legal case," he says.
Rice notes that attorneys deposing him as an expert witness often will pull out articles he's authored, sometimes quoting him out of context. "They will try to convey the impression that in some way I'm not being honest or can't be trusted," he says.
a.torneys are using this same tactic with social media, says Rice, and depending on how the case is being framed, it could well become admissible evidence. "Saying anything that could impugn your integrity or professionalism can be very, very damaging," he says.
Posting During a Trial
In one case, a blogger made real-time posts during his medical malpractice trial using the anonymous pseudonym "Flea," notes William Sullivan, DO, JD, FACEP, director of emergency services at St. Margaret's Hospital in Spring Valley, IL, and a Frankfort, IL-based practicing attorney. "He made derogatory comments about the jurors in the case, the opposing attorney, and the legal system in general," he says. "In addition, he disclosed some of his attorney's trial strategy."
a.colleague of the plaintiff's attorney recognized that the posts were describing his colleague, and he notified her, says Sullivan. The following day, while on the stand, the defendant physician was first asked whether he had a medical blog, and then asked "Are you 'Flea'?" he says.
"After the defendant admitted that he was 'Flea,' the case settled for a substantial sum the following morning," says Sullivan. "Had the jurors learned of 'Flea's' contempt for them and the system, it is likely that a large verdict would have ensued."
Posts to social media sites probably will be discoverable during a lawsuit, says Sullivan. "Whether those posts may be admissible as evidence depends on whether the plaintiff can draw a link between the post and alleged malpractice," he says.
a. EP who posts a picture of himself or herself partying at a bar a few hours before a scheduled shift may open himself or herself up to accusations of being intoxicated when caring for patients at work, says Sullivan.
"A 'tweet' that you 'busted another patient faking back pain to get drugs' which occurs on the same date that you missed an epidural abscess might lead jurors to think that you didn't take a patient's complaints seriously," adds Sullivan.
"The bar for admitting social media posts into evidence may be fairly low," says Sullivan. "Most defense attorneys would discourage any posting about patients."
If an EP has a strong desire to post stories about patients, he or she should change identifying information so that the patient cannot be identified, advises Sullivan. "Strongly consider whether to publish any material portraying patients in a negative light," he says.