American society is more wired than ever. Texting, emailing, and tweeting have all but replaced calling and writing. Online social networking communities like Facebook.com™ and MySpace.com™ are quickly growing in popularity.
It is not just teenagers and college students who are partaking. Professionals, including physicians, are joining and participating in online networks. Several networks have been created for use exclusively for physicians including Sermo.com™ and Medpedia.com™.
Other networks are designed to be forums to exchange information between physicians and patients. While patients can benefit from their physicians’ ability to connect and consult with thousands of other physicians in the United States and around the world regarding treatment advice or similar case studies, these online communities can expose physicians to a host of risks and potential liabilities.
Online communities: Risks and rewards
Online communities create opportunities and risks for physicians and their respective employers. This article will do three things: (1) identify the technology and select web sites; (2) assess some of the key liability risks for physicians regarding online community postings; and (3) offer some practical ways to help reduce risk and avoid liability, particularly for professional liability claims, alleged violations of patient privacy and confidentiality, and the physician- patient relationship.
What are online communities?
MySpace and Facebook are two very popular online communities that have millions of participants. MySpace allows members to utilize a template to create a Web page (or “blog”) about themselves where they can post biographical information, including photographs and videos. Facebook is a take-off on the traditional paper facebooks distributed to incoming college freshmen except that anyone with a personal email address can set up an account.
With only an email address, patients, employers, hospital administrators, other physicians, or even a state medical board member or other regulator can gain access to networks and profiles of physicians who use these online communities.
A more recent phenomenon is Twitter.com™. Twitter is a micro-blogging service that challenges users to tell others what they are doing using a limited amount of text. Micro-blogs can be viewed by other members who sign up to follow that individual’s blogs. Twitter allows individuals to share their moment-to-moment activities with large groups almost instantaneously.
Online tech in the operating room
Twittering has even occurred in the operating room. For instance, in early February 2009, a group of surgeons at Henry Ford Hospital in Detroit, Michigan, twittered during surgery to remove a cancerous tumor from a man’s kidney. Other doctors, medical students and curious outsiders followed the real time updates about the procedures which were posted by the chief resident, who typed via a laptop in the operating room while a fellow surgeon operated. It is anticipated twittering will become a more common occurrence during many medical procedures.
Within the past year, there have been a number of social networking sites dedicated to physicians. For instance, sites like Sermo.com™, Ozmosis.com™, and iMedExchange. com™ provide doctors with the opportunity to share advice on clinical situations and practice management tips.
According to its own Web site, Sermo is the place where “physicians aggregate observations from their daily practice and then—rapidly and in large numbers—challenge or corroborate each others’ opinions, accelerating the emergence of trends and new insights on medications, devices and treatments.” Sermo is similar to MySpace and Facebook because it allows users to create personal profile pages which could include their professional background and blog entries about various subjects or daily interactions viewed only by select members.
So, who exactly, is viewing Sermo? The short answer is anyone willing to pay. Unlike other sites that sell ad space to generate revenue, Sermo allows commercial entities (e.g., hedge funds, pharmaceutical companies, or plaintiff’s attorneys) to view discussions among Sermo members and post questions.
Ozmosis is a newer startup company in this area, and it has a similar purpose and objective to Sermo. According to its Web site, Ozmosis is “the professional application of a social network that enables verified, U.S. licensed physicians to exchange medical knowledge.” Ozmosis suggests it is a Web site where physicians “can turn daily for trusted and reliable clinical, practice management and health policy information” which ultimately saves time and improves patient care.
Sermo’s top competitor is apparently iMedExchange. It distinguishes itself from Sermo by permitting physicians to exchange information that is unrelated to the practice of medicine. Members of iMedExchange can discuss with one another a range of social topics (e.g., wine connoisseurs or retirement finances) and the clinical, business, and personal issues of interest to a physician.
The Three Golden Rules of Online Participation
- WHAT YOU POST IS NOT PERSONAL. Once you’ve posted information on the Internet you’ve relinquished any claim to privacy.
- WHAT YOU POST IS PERMANENT. You may apply security settings to restrict access and regularly delete information from your Web page, but there’s a decent chance someone or some program has archived your most detailed, potentially damaging content somewhere. Assume that everything you write could come back to haunt you in five, 10, or 20 years.
- WHAT YOU POST CAN SUBJECT YOU TO PROFESSIONAL DISCIPLINE OR LEGAL LIABILITY. If something you post violates a medical code of ethics, HIPAA, or an employer or medical staff policy, you can be disciplined or sued for your actions online.
Types of online medical communities
Many Web pages use the term “wiki” to describe themselves. Wiki is Hawaiian for fast, and is premised on the notion that inclusive participation builds a more comprehensive database. Wikis are essentially online libraries of information gathered together by anyone who wants to add, remove, edit, or change the content to make it better. With medical wikis, most Web sites only allow a registered contributor or credentialed medical professional to add and alter content.
One of the first medical wikis was Ask DrWiki.com™. Modeled after the online encyclopedia Wikipedia.com™, DrWiki was originally started as a place for cardiologists to share and exchange information. Since that time, DrWiki has expanded its content to include a variety of other specialties, and its viewers are not limited exclusively to physicians.
More recently, in February 2009, the doctor-run wiki, Medpedia. com™, was launched. According to its Web site, Medpedia’s goal is to “become a repository of up-to-date unbiased medical information contributed and maintained by health experts around the world and freely available to everyone.”
In addition to the Web sites identified above, there are many other sites that allow a participant to “ask a physician” a particular question and receive feedback from a physician with regard to that issue. These are distinct from medical practices that have set up Web pages for their established patients to ask a particular question and receive a secure reply from a physician in that practice.
Liability risks of online postings Liability risks which physicians may encounter in participating in public online communities include potential violations of physician-patient privacy, violations of HIPAA (Health Insurance Portability and Accountability Act), suits for defamation or libel, violations of the intellectual property rights of others, and of course, claims for malpractice or professional liability.
Almost all of the Web sites identified above have “Terms of Service” that physicians, as members, must agree to in order to participate in these communities. These terms of service or disclaimers typically specify information on the site is for the purpose of medical information and education only and does not constitute medical advice. The terms also suggest patients seek independent medical evaluation and treatment from their own physician and that no physician-patient relationship is created by using content from the site. Moreover, physicians are generally warned that a visitor to a Web site should not be able to identify any individual based upon the description provided by the physician.
For instance, the Ozmosis site informs physicians as part of the terms of service that they should not post unlawful, libelous, defamatory, or otherwise objectionable information which could give rise to civil or criminal liability; and not to post, publish, reproduce or distribute information or other material obtained on the site which is protected by copyright, trademark, or other proprietary rights.
Finally, there are professional liability risks to physicians who use these sites. While Sermo or Medpedia may try to downplay the risks by disclaiming that the content on the site is for education and informational purposes only, it is not that simple. Whenever a physician provides advice without examining the patient or his medical records, the physician is potentially liable to a malpractice claim or a charge of practicing in a jurisdiction without a license, particularly if it is discovered the advice was relied upon in providing treatment.
Minimizing the risk of online communities
These new technologies are rapidly developing and the risks can only be anticipated at this time because there are so few reported cases in this area. However, while the medical and legal communities adapt to these new online sites, here are some key steps you can take to reduce your liability and minimize your risk of exposure:
- Review the terms of service with your attorney. Prior to joining any of these online communities and certainly before you post any “medical” or “clinical” information, have your attorney review the terms of service to make sure you are fully informed of what ypes of postings or activities could pose a risk for violating copyright laws, HIPAA, professional liability, or any other unlawful or actionable claims. Be sure the terms of service clearly represent that you are not forming a physician-patient relationship by answering questions or posting on the site. This is particularly important for sites where information is available to the general public and viewers may rely on information posted rather than seeking direct treatment from a physician.
- Establish guidelines for your postings in advance. Take time to establish the general format of your blog, profile, or participation on the site. Discuss with an experienced professional what topics you intend to address and what types of questions you want to answer before actually doing so. Before the temptation to hit the “send” button occurs, remember this information can be found in cyberspace forever.
- Review your professional liability policy. Determine whether your policy would cover you for suits arising out of such online conduct and what additional limitations your coverage provider might impose on your use of these Web sites under the policy.
- Review your employer’s policy relating to online posting. You could be violating your employment agreement and be subject to termination based upon your online activities. If you are the employer (rather than the employee), establish a policy if you do not already have one regarding acceptable uses of the internet.
- Know your posting may not remain anonymous. Be careful about what you say; even if you aren’t using your name, do not assume you or your employer can’t or won’t be identified.
- Include a disclaimer. Be sure to include an individual disclaimer stating you are expressing your own views and that you are not offering medical advice and it should not be relied upon without consulting a physician.
As technology evolves, more physicians will participate in online activities in their personal and professional lives. From a professional standpoint, a physician must be careful with regard to what he or she posts online. Physicians can subject themselves to lawsuits, disciplinary action, or potential consequences to their employment situation based on the content of online posts.
Information is a valuable tool, but if it is misused or misconstrued, the recipient of the information may seek legal recourse. Every physician should weigh the positive and negative impact of their online activities before hitting the “send” button.