Example 2: An OB-GYN in St. Louis took to Facebook to complain about her frustration with a patient: “So I have a patient who has chosen to either no-show or be late (sometimes hours) for all of her prenatal visits, ultrasounds, and NSTs. She is now 3 hours late for her induction. May I show up late to her delivery?” Another physician then commented on this post: “If it’s elective, it’d be canceled!” The OB-GYN at issue then responded: “Here is the explanation why I have put up with it/not cancelled induction: prior stillbirth.”
Although the OB-GYN did not reveal the patient’s name, controversy erupted after someone posted a screenshot of the post and response comments to the hospital’s Facebook page. The hospital issued a statement indicating that its privacy compliance staff did not find the posting to be a breach of privacy, but the hospital added it would use this opportunity to educate its staff about the appropriate use of social media. Many believe this physician got off too easy.
The penalties for patient privacy violations (or even alleged patient privacy violations) are multifaceted. Not only can the federal government impose civil and criminal sanctions under HIPAA on the physician and his/her affiliated parties (e.g. physician’s employer), but states can also impose penalties. State-imposed penalties for patient privacy violations vary from state to state. Additionally, the patient may sue the violating physician and his/her affiliated parties for privacy violations. Although HIPAA does not afford patients the right to bring a private cause of action against a physician, state law often does grant patients such a right. Also, state medical boards often have the right to impose penalties, monetary and non-monetary, on a physician for privacy violations. These can include suspension or termination of medical licensure.
Recent reports indicate that people who “like,” “share,” “re-tweet,” or comment on inappropriate social media posts are also getting reprimanded. Finally, the reputational harm associated with an inappropriate post on social media is immeasurable, especially in light of the availability of information on the Internet. Unfortunately, when the physicians described above enter their names in a search engine, they do not see their professional accomplishments and prestigious educations; instead, their top hits are news articles reporting on their inappropriate posts.
Post with caution.
Steven M. Harris, Esq., is a nationally recognized healthcare attorney and a member of the law firm McDonald Hopkins LLC in Chicago. Write to him at [email protected].