Of 530 medical students, residents, and EPs, 13% used Google to research a patient; 2% had searched for patients on Facebook, according to a recent survey.1 One quarter of EPs surveyed considered using Facebook to learn about a patient “very unethical.” Patient confidentiality, dignity, and consent were the most frequently cited ethical concerns.
The study’s findings show that ED practitioners do, in fact, use social media in the ED setting to obtain patient information, says Jonathan D. Rubin, JD, a partner at Kaufman Borgeest & Ryan in New York City.
“This is the more modern version of searching through a patient’s wallet for information when they present with an altered level of consciousness,” he says.
Conducting Internet searches on ED patients “can be problematic, particularly when the physician does not have a clinically relevant reason for looking into the patient’s online life,” warns Denny Maher, JD, MD, general counsel and director of legal affairs for the Seattle-based Washington State Medical Association.
The issue of Googling patients has come before Washington’s state medical licensing agency, the Medical Quality Assurance Commission (MQAC), which issued a set of guidelines in response to increased numbers of complaints regarding questionable use of the Internet and social media. The guidelines state that unless the physician is looking for patient information related to treatment, searching the Internet for information on patients is a violation of professional boundaries.
“Should MQAC investigate a patient’s complaint and find that a physician has committed such a boundary violation, the physician may be disciplined for unprofessional conduct,” Maher says.
New Legal Territory
It isn’t always clear whether or how an EP’s use of the Internet or social media will end up violating privacy laws or professional boundaries.
“This is proverbial new territory,” says Tierney Edwards, JD, associate director of legal and federal affairs at Washington State Medical Association.
Any Internet search that does not have a specific clinically related purpose, however, is potentially problematic legally.
“Whether such actions could result in any liability in civil court is something we can’t opine on,” Edwards says. “But it would cause problems with our medical licensing body, should a complaint be filed.”
It’s important that EPs understand that Googling a patient could complicate medical malpractice litigation, says Lizabeth Brott, JD, regional vice president of risk management at ProAssurance Companies in Okemos, MI.
“Clearly, if a patient is aware of inappropriate conduct and claims injury due to the conduct, a physician could have difficulty defending such a claim,” she says.
Online searches of patient information may be justifiable in certain situations.
“However, physicians should be able to justify such searches,” Brott adds.
U.S. licensing authorities have reported numerous professional violations by healthcare providers on social media that resulted in disciplinary action, according to Brott.
“We expect to see more similar cases in the future,” Brott notes.
Googling ED patients would not violate the Health Insurance Portability and Accountability Act, since the search would only give an ED provider access to already-public information, “and anything one might find on Google is not Protected Health Information,” Rubin says.
Consent and Accuracy
Nevertheless, an online search could cause problems with respect to patient consent and accuracy of information.
“Thus, it creates potential for other litigation and malpractice exposures,” Rubin says.
Online searches could lead to a claim that a given patient was somehow treated differently because of something the ED provider found out about him or her.
“Furthermore, when these searches are conducted for reasons that could amount to boundary violations, such a claim could become part of malpractice litigation and also possibly a licensing board complaint,” Rubin says.
Rubin says it is unlikely that Google searches obtained without the patient’s knowledge that were not for demonstrable safety concerns would reduce the EP’s legal risks.
“On the contrary, they could be heightened,” he says. “It could impact the credibility of the chart and the provider during malpractice litigation.”
If an EP cannot reach a patient or a patient’s family in an emergent situation, Googling address information could be helpful and even life-saving.
“Where a provider has a reasonable suspicion based on conversations, observations, and clinical assessment that is recorded, that a patient may be at risk to themselves or others, Googling the patient could be justified and defended,” Rubin says.
In the context of a lawsuit or licensing board investigation, an EP who can demonstrate that he or she Googled a patient for safety reasons will likely have a good defense to any claim of a boundary violation.
“This is a balancing test, and each case must be taken on its individual facts,” Rubin notes.
Such Google searches, however, should then be recorded in the chart so the EP can later defend his or her actions and reasoning.
“They should be able to clearly explain and justify why they believed such a search was necessary and in the patient’s best interest, in keeping with the adage of doing no harm,” Rubin says.
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Ben-Yakov M, et al. Do emergency physicians and medical students find it unethical to ‘look up’ their patients on Facebook or Google? West J Emerg Med 2015;16:234-239.
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Lizabeth F. Brott, JD, Regional Vice President, Risk Management, ProAssurance Companies, Okemos, MI. Phone: (800) 282-1036, ext. 6217. Fax: (205) 414-1192. E-mail: [email protected].
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Tierney Edwards, JD, Associate Director of Legal and Federal Affairs, Washington State Medical Association, Seattle. Phone: (206) 956-3657. Fax: (206) 441-5863. E-mail: [email protected].
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Denny Maher, JD, MD, General Counsel, Director of Legal Affairs, Washington State Medical Association, Seattle. Phone: (206) 956-3640. Fax: (206) 441-5863. E-mail: [email protected].
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Jonathan D. Rubin, JD, Partner, Kaufman Borgeest & Ryan, New York City. Phone: (212) 994-6515. Fax: (212) 980-9291. E-mail: [email protected].
