Operating sound social media policy

The R.I. Board of Medical Licensure and Discipline has issued policy guidelines for the appropriate use of social media and social networking in medical practice.
The board, which has the power to discipline Rhode Island doctors for misconduct and violation of professional standards, issued the guidelines “to educate physicians regarding the appropriate use” of social media and networking “while maintaining the high professional standards” required by the medical profession.
Doctors, patients and everyone impacted by our health care system share an interest in how the medical profession utilizes social media and networking. At the same time, doctors need to understand the legal limitations on them as employers of social media using employees.
Doctors use social media in myriad ways. For example, a doctor may have a personal Facebook page, post pictures to Snapchat or Instagram, read and post content to medical blogs, follow and respond to medical experts on Twitter, and promote her practice online by making statements about her successful intervention with a particular disease or experience with a specific, new modality. On a more macro-level, doctors and medical researchers grapple with complex issues pertaining to crowd sourcing in medical research, telemedicine, and the professional utilization of social networking in the age of the electronic medical records and privacy laws such as HIPPA.
The guidelines caution that the physician-patient relationship, and the public trust in the medical profession, can be undermined by the unintended consequences of doctors’ social media usage. Seven narratives describe doctors getting themselves in bad situations by their online conduct.
The examples can be categorized as:
• Boundary issues with patients created when doctors interact with patients on-line. • Damage to professional reputation when doctors share personal information in social media or speak disrespectfully in a public online forum.
• Breach of confidentiality.
Both doctors and patients should read these important cautionary tales. Avoidance of these mistakes can help avoid harm to patients and the discipline of doctors.
The board reiterates in the guidelines its authority to discipline physicians for “unprofessional behavior relating to the inappropriate use of social networking media.”
Disciplinary actions can range from a letter of reprimand to the revocation of a license. Given the potential sanctions, damage to reputation, and legal fees associated with disciplinary proceedings arising from a careless tweet or post, doctors should use social media and networks deliberately.
Fortunately, expert and peer commentary is readily available online about the benefits and hazards of social media for medical professionals.
Looking ahead, doctors should expect that technological development in the realm of social media will outpace the specific delineation of prohibited behaviors in the guidelines. The board anticipates modification to the guidelines as the technology changes and “best practices emerge.”
But the inevitable gap between the guidelines and the technology will undoubtedly require doctors to fall back on the core legal and ethical principles – including but not limited to patient confidentiality, professional boundaries between patient and doctor and candor in communications – to minimize the risk of discipline.
Every medical practice and facility with employees should have a social media policy so employees know what they can and cannot do. An employer’s policy must be properly drafted to protect patients and the employer, educate employees and provide grounds to discipline employees who post, blog or tweet inappropriately. Medical facilities and practices, like all other employers, have the legal right to prohibit employees from using the employer’s computer and networks to access personal social media. Employers must not, however, go too far in restricting employees’ online conduct or conducting cybersurveillance. For example, a medical practice cannot preclude broadly employees from disparaging physicians or from disclosing confidential personnel information. Such overly broad rules violate the National Labor Relations Act, which vests in employees the right to communicate about their wages, hours and other terms and conditions of employment.
Similarly, employers should exercise restraint when viewing the content of employees’ personal social media (i.e., a Facebook page). Suits under the Rhode Island right-to-privacy statute may be an increasingly used weapon against employers who disclose information obtained from private social media sources. The General Assembly has considered a law restricting employers’ right to demand access to employees’ social media.
On the other hand, disciplining employees for violating patient confidentiality online and other unprotected or unlawful conduct remains legal. Employees’ social media accounts can be the portal through which confidential information about patients or the business leaves the office.
Employers also need to look out for bullying or unlawful harassment using e-mail/text messages or social media.
Medical practices and institutions will need to train and monitor employees more carefully within the parameters of the evolving law. •


Andrew Prescott is a labor and employment partner in Nixon Peabody LLP’s Providence office.

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