HEALTHCARE LAW

Social Media – Five Things Physicians Should Never Post By Julie A. Tyk, JD

As an example, Alaska dentist, Seth Lookhart, made national headlines for filming a video of himself riding a hoverboard while extracting a patient’s tooth. Dr. Lookhart filmed the procedure on a sedated patient without authorization and forwarded the video to several people. A lawsuit was filed by the State of Alaska in 2017 charging Dr. Lookhart with “unlawful dental acts”, saying his patient care did not meet professional standards. The lawsuit goes on to further allege Dr. Lookhart joked that performing oral surgery on a hoverboard was a “new standard of care,” citing phone records that were obtained. Dr. Lookhart has also been charged with medical assistance fraud for billing Medicaid for procedures that were not justified, unnecessary, and theft of $25,000 or more by diverting funds from Alaska Dental Arts. On Friday, January 17, 2020, Dr. Lookhart was convicted on 46 counts of felony medical assistance fraud, scheming to defraud, misdemeanor counts of illegally practicing dentistry and reckless endangerment. Dr. Lookhart was sentenced to serve 20 years with eight suspended, leaving 12 years of active time.

A doctor in Rhode Island was fired from a hospital and reprimanded by the state medical board. The hospital took away her privileges to work in the emergency room for posting information online about a trauma patient. The doctor’s post did not include the patient’s name, but she wrote enough that others in the community could identify the patient, according to a board filing.

The popularity of social media has exploded in recent years. According to a recent PEW report, 70% of Americans use social media. Before jumping on the bandwagon, healthcare professionals are advised to be mindful of the possible ramifications of posting information on social media sites. There are numerous legal issues that can arise when healthcare providers use social media, including issues related to patient privacy, fraud and abuse, tax-exempt status, and physician licensing. The Federation of State Medical Boards has issued the Model Guidelines for the Appropriate Use of Social Media and Social Networking in Medical Practice, which contains the “industry standards” for cyber security, online behavior, and patient privacy. Physicians should familiarize themselves with these guidelines.

Five things which physicians should never post to social media. 1. Inaccurate Medical Information: Medical professionals should avoid republishing, sharing, “liking,” or “retweeting” news stories about medical treatments unless they have completely read the story and have verified its accuracy. If a user finds inaccurate medical information through your social media channel, it can reflect very poorly upon you and your practice. Healthcare professionals also need to be careful about providing medical advice to patients using social media. If a patient receiving the medical advice from a doctor through social media is located in a state in which the doctor is not licensed, the doctor giving the advice risks liability under state licensing laws. 2. Do Not Post Anything that Violates Patient Confidentiality: Friending patients on social media sites may pose risks under Health Insurance Portability and Accountability Act (HIPAA) and state privacy laws. The fact that an individual is a patient of a healthcare provider falls within the types of health information that these laws are designed to protect. As a rule, healthcare providers should not use social media to share any health information that could be linked to an individual patient, such as names, pictures, and physical descriptions, without the patient’s consent. The American College of Physicians recommends that doctors be especially aware of the implications for patient confidentiality when using social media. There have been cases of physicians losing their medical license after posting an image on social media that violated patient confidentiality. Always obtain permission from the patient in writing if you intend to use an image featuring any body part. Avoid talking about specific patients at all on social media unless you have permission to do so. Even if there is no chance that a patient could be identified by what you write on social media, it is considered unprofessional to discuss the specifics of their condition. Also be careful when taking photographs of yourself while in your practice. There have been cases where medical professionals have accidentally included the image of the patient behind them while taking a ‘selfie’. Make sure there are no patient health records on display when taking photos in the medical practice and no patients are included in photographs unless they want to be. 3. Your Personal Information: The American College of Physicians (ACP) and the Federation of State Medical Boards (FSMB) recommend that doctors create separate social media accounts for their professional and personal lives. They also suggest that the professional profile be more visible than any personal one. 4. Opinions on Controversial Issues: Any controversial topic or “hot button” topic should be avoided as much as possible, including anything to do with religion, politics, racism, abortion, and gun control. Moreover, healthcare providers that are exempt from taxation under Section 501(c)(3) of the Internal Revenue Code are prohibited from intervening in political campaigns and from seeking to influence legislation as a substantial part of their activities. This restriction may extend to advertising on or sponsoring social media sites that support a political candidate or particular pieces of legislation. 5. Complaints or Rants: It is unprofessional to use social media platforms to complain or rant about your professional situation. Everything you write on social media may one day come back to haunt you. A patient might realize that you were complaining about them on social media.

A medical malpractice claim can have far reaching implications. The Health Care Practice Group at Pearson Doyle Mohre and Pastis, LLP, is committed to assisting Clients in navigating and defending medical malpractice claims. For more information and assistance, please contact David Doyle and Julie Tyk at Pearson Doyle Mohre & Pastis, LLP.

Julie A. Tyk, JD, is a Partner with Pearson Doyle Mohre & Pastis, LLP. Julie concentrates her practice in medical practice defense litigation, insurance defense litigation and health care law. She has represented physicians, hospitals, ambulatory surgical centers, nurses and other health care providers across the state of Florida, and may

be contacted by calling (407) 951-8523; jtyk@pdmplaw.com. 