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Social Media In the Academic Medical Center

American Health Lawyers Association Legal Issues Affecting Academic Medical Centers and Other Teaching Institutions January 27-28, 2011 Washington, D.C. Jenny Corotis Barnes, Esq.

Getting to Know You

What access do you have? What kind of policy do you have? What do you hope to get from our presentation?

Presenter Tweet: @OSUbarnes I'm Assistant General Counsel at OSUMC. I support use of social tools that embrace the OSUMC vision without undue risk to patients' privacy.

The OSU/OSUMC Numbers

Mission

Education

Patient Care

Research

Vision

Strategic Goals

Note: Top 20 across research, education and patient care as measured by NIH, Best Medical Schools, Best Hospitals, #Publications/citations and Endowment

The Ross

12

Productivity Issues

January 2009

"Shut it down!"

Build a Team

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Balancing Act

Greatest Vulnerability

HIPAA

Stricter laws pertaining to Breaches Information flows like water with EHR Varying societal views on PHI Hard for hospitals/doctors to defend themselves

Social Media 101 Control v. Influence

Inside your entity you have control over what employees say, share, and do with social media through the implementation of rules, policies, and enforcing behavioral standards. Company time/company equipment. "Remember that in the vast social media ecosystem that lies outside your company, beyond your reach, there are no set rules of behavior. You can be assailed, spoofed and blasphemed, and you have no control."

"The Social Media Bible" Lon Safko and David Brake

Social Media 201

"Our policy is that you, the employee, may use Social Media for personal use only during nonworking time and in strict compliance with all other terms of this and other Medical Center and University policies."

Social Media 301

"You don't create a culture. Culture happens. Culture is the by-product of consistent behavior."

» Jason Fried--Social Media Management Expert

"Practice does not make perfect. Only perfect practice makes perfect."

» Vince Lombardi

Social Media 401

Social Media Policy Participation Guidelines Some tool specific Philosophy FAQs Manager Meetings Oversight Committee

Social Media Policy Documents

· · · · · Policy Guidelines Terms of Use Philosophy FAQs

Social Media Policy

Policy · Define social media · State the purpose its use · When employee can use · List what items should not be disclosed

Social Media Policy

Guidelines · State responsible department · Provide for types of uses (i.e. institutional or personal) · Any information that will help user best represent the institution and themselves on line

Social Media Policy

Terms of Use ­ advise user what types of comments you will delete Philosophy ­ connect to mission, vision FAQs ­ good method for dissemination of key information

Responding

http://www.scribd.com/doc/26684375/Social-Media-Response-Flow-Chart

PHI & Blogging Advic

Remove the "18 identifiers" from PHI in order to render the information de-identified.

45 C.F.R. § 184.514

PHI & Blogging Challenge

Most difficult is the 18th identifier ­ "any other unique identifying" information

Physician as Public Figure Unintended Consequence

Not famous private citizen physician transitions into "public figure" as a result of blogging activities.

Physician as Public Figure Significance

· less protection from defamatory actions · must meet a higher standard of proof to hold speaker liable. (false vs "actual malice") · physicians blogs may attract speech that is damaging to his/her reputation · opinions generally protected speech

Physician as Public Figure Limited Purpose

· thrust themselves into the forefront of a public controversy · special prominence in the resolution of a public question · public concern ­ subject of legitimate news interest, general interest of value and concern to public

On-line Public Image

· increasing numbers of patients search for (and rate) physicians on-line · AMA - "Professionalism in the Use of Social Media" - monitoring reputation, consider maintaining appropriate separation of public and private life · can't control what is said, can create their own story/digital footprint

AMA Guidance

Opinion 5.026 - The Use of Electronic Mail (1) E-mail correspondence should not be used to establish a patient physician relationship . . . . . (2) When using e-mail communication, physicians hold the same ethical responsibilities to their patients as they do during other encounters . . . . specialty societies can provide specific guidance as to the appropriateness of offering specialty care or advice through e-mail communication. (3) Physicians should engage in e-mail communication with proper notification of e-mail's inherent limitations . . potential breaches of privacy . . patients should have the opportunity to accept these limitations . . . disclaimers alone cannot absolve physicians of the ethical responsibility to protect patients' interests.

http://www.ama-assn.org/ama1/pub/upload/mm/code-medical-ethics/5026a.pdf

AMA Guidance

Opinion 5.027 - Use of Health-Related Online Sites (1)Physicians responsible for the health-related content of an online site should ensure that the information is accurate, timely, reliable, and scientifically sound, and includes appropriate scientific references. (4) Physicians who establish or are involved in health-related online sites must minimize conflicts of interest and commercial biases. This can be achieved through safeguards for disclosure and honesty in funding and advertising. It also requires that physicians not place commercial interests ahead of patient health; therefore, physicians must not use health-related online sites to promote unnecessary services, refer patients to entities in which they have ownership interests, or sell products outside of established ethical guidelines.

http://www.ama-assn.org/ama1/pub/upload/mm/code-medical-ethics/5027a.pdf

AMA Guidance

The American Medical Association's Council on Ethical and Judicial Affairs is at work on ethical guidance for physician online conduct that could be presented as a report within the next 12 to 18 months.

Source: http://www.ama-assn.org/amednews/2010/06/28/prsm0628.htm

Future Web

Lies are a problem but, what about true information taken out of context?

Future Web

User-generated content is combined with a new layer of data aggregation and analysis and live video!

Future Web Drivers

Future Web Possible Reponses

Practical Legal Advice

The off-line world is a good place to start for guidance. A good rule of thumb is to keep in mind that conduct that would be illegal or a violation of the law, or your entities policy in the "offline" world would still be illegal or a violation of when it occurs online.

Copyright ©

Generally can't use other people's written work unless you have permission, or it is a "fair use." For "fair use" you can only use a portion for educational or non-commercial use and such use must not interfere with the author's copyright.

Libel

Libel occurs when the false and defamatory communication is written and seen. The publication of false statements that harms another person's reputation.

Image Source: http://cara-wilson.blogspot.com/2009/10/law-notes-libel-cases.html

Slander

Slander occurs when the false and defamatory communication is spoken and heard. False statements that harm another person's reputation.

Image Source: http://www.libel.com/

TMTrademark®

Any word, name, symbol or device that distinguishes goods and services from those made or sold by others. Can include slogans, shapes, and colors.

Trade Secrets

Information that entities keep secret to give them an economic benefit over their competition.

Image Source: http://timesonline.typepad.com/alphamummy/2007/12/10-things-mothe.html

Invasion of Privacy

Disclosure of intensely personal information about someone. Unlike libel, a statement can be an invasion of privacy even if it is true. For instance it may be an invasion of privacy if you disclose that someone has AIDS. Recently the Supreme Court of Ohio recognized the right to sue for damages in cases where an individual's right to privacy has been violated by publicity that portrays the person in a "false light." -Welling v. Weinfeld

Image Source: http://www.knowldentitlow.com/PrivacyPolicy.php

Obscenity

Under state and federal law it is a crime to publish, sell, distribute, display or even possess obscene materials. Basically it is material that has no literary, artistic, political or other socially redeeming value. Community standards apply.

Image Source: http://newzar.wordpress.com/2009/09/

Harassment

Be aware of and practice the guidance of your sexual harassment policy. Also, ensure that it addresses harassment generally.

Harassment

First Amendment Rights

An individual's rights are protected to express his or her opinions and the government will only intrude on speech in very limited situations. There must be a compelling state interest and the government's solution must be narrowly tailored to meet its objectives. The Supreme Court has generally held that government may not regulate the internet.

Image Source: http://www.libel.com/

Pre-Employment Concerns

Background Checks

Is the "digital dirt" worth the legal risk? Using social networking sites for "background checks" can run you afoul of discrimination and other laws. You have to be concerned about information that would not be found on a resume and how that may affect your decision, or appear to affect your decision. How do you unlearn what you know. You have to weigh the risk verses the value of the information.

Pre-Employment Concerns

Background Checks Federal Laws

· Federal civil rights laws protect applicants against discrimination based on race color, religion, national origin, sex, pregnancy, age disability, citizenship status, military/veteran status, and genetic characteristics.

State Laws

· State Law can protect other classes of individuals as well. Michigan - it is illegal to discriminate against someone for height and weight Minnesota - it is illegal to discriminate against people who are collecting public assistance

·

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Pre-Employment Concerns

Background Checks Federal Laws

· ADA bans discrimination on the basis of physical or mental disabilities­ reveals they have cancer or adult ADHD Fair Credit Reporting Act governs employment background check for the purpose of hiring, promotion, retention, or reassignments. Employers can't obtain credit report of applicants without first obtaining the individuals consent if done by a third party.

State Laws

· North Dakota - it is illegal to discriminate against someone for "participation in lawful activities off the employer's premises during non-working hours which is not in direct conflict with the businessrelated interest of the employer" N.S. Cent. Code, Sec. 14-02.4-03 (Colorado and California have similar laws)

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Pre-Employment Concerns

Background Checks

In 20 states it is illegal to base an employment decision on sexual orientation.

Active Employment Concerns

· · · · · · · · Reduced Productivity Patient/Customer Perceptions Entity Confidentiality Employee Relations Issues Employee Satisfaction Concerns Security of Internal IT Operations ­ the web viruses Use of unlicensed software Wasted Bandwidth ­ internet connections cost money ­ is the medical center utilizing its efficiently

Post Employment Concerns

Former Employees

Would their sites be of interest to you? Are they a potential plaintiff? Do their sites contain company intellectual property or pictures from the job or videos about why they were terminated?

Conclusion

Information

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