Fear of Facebook: Private Ordering of Social Media Risks Incurred by Healthcare Providers

• Publication year: 2021
• Citation: Vol. 90

90 Nebraska L. Rev. 703. Fear of Facebook: Private Ordering of Social Media Risks Incurred by Healthcare Providers

Fear of Facebook: Private Ordering of Social Media Risks Incurred by Healthcare Providers

Nicolas P. Terry(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 703

II. Social Media and Healthcare Workers Misbehaving . . . . 705
A. Social Media's Exponential Growth ................ 705
B. Healthcare Providers Misbehaving Online ......... 708

III. Ethical Codes and Provider Policies ................... 711
A. Ethical Guidelines ................................. 712
B. Employer Social Media Policies .................... 716
C. Assessing Legal Limits on Policies ................. 720
1. Labor Law .................................... 721
2. Privacy Law ................................... 725

IV. Provider Access to Patient Social Media Data .......... 727
A. From Voyeurism to Obligation ..................... 727
B. Risk Managing Access ............................. 733

V. Regulating Friendships and Controlling Adverse Feedback ............................................. 734
A. Revisiting the "Boundary" Issue ................... 734
B. Provider Comparison Sites ........................ 738
C. Social Media Gag Agreements ..................... 743

VI. Conclusion ............................................ 750

I. INTRODUCTION

In a prior article, I identified four scenarios where doctors and patients faced legal or ethical peril because of their participation in social media.(fn1) The imperiled scenarios described were physicians

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posting their social information online, patients exposing their own health-related information online, physicians and patients becoming social networking "friends," and physicians "tweeting" or wall-posting about their work.(fn2)

In the two years that have passed since that article was written, the unique or heightened risks associated with data posted on profile pages or interactions within those "walled gardens" have become widely appreciated. Equally, some of the previously identified pitfalls for professionals have materialized. In particular, online activities by healthcare professionals have increasingly jeopardized patient confidentiality. Other scenarios, happily, do not seem to have gained much traction. For example, tweeting from the operating theater seems to be more popular on Grey's Anatomy than in real life.(fn3)

The last two years have seen important quantitative and qualitative shifts in social media use patterns as well as a rapid deployment of private ordering: social media policies and other contractual constructs emanating from physicians, professional organizations, employers, and educators. Yet, these private, often contractual attempts to regulate online interactions or social media conduct are not all benign, themselves creating ethical or legal risk.

In this Article, I concentrate on social media and these new risk management constructs and do so primarily from the perspective of physicians. Part II provides updated statistics on Internet use by healthcare workers and explores some of the scenarios that have led medical schools and healthcare entities to expressly address social media behavior. Part III inquires into how professional organizations or those who employ or credential physicians have attempted to change the rules of the game by promulgating social media policies and analyzes some of the legal constraints on those policies. Part IV deals with the reality of medically relevant information about patients increasingly moving online and asks whether physicians should attempt to access information that might be useful or even life-saving. Finally, Part V describes how the patient-physician dialog has increasingly spilled out of the consulting room and onto social media sites and explores how physicians should react not only to overtures for social media friendship but also to online critical patient comments.

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II. SOCIAL MEDIA AND HEALTHCARE WORKERS MISBEHAVING

A. Social Media's Exponential Growth

In the last two years, the growth of social media has been relentless, with Facebook alone gaining 250 million users.(fn4) Facebook has only been in existence for six years yet has as many as 750 million users worldwide(fn5) and as many as 157.2 million U.S. visitors per month.(fn6) Twitter, at only five-years-old, has 200 million users.(fn7) Membership numbers aside, the traditional web metric of unique visitors is also telling, with Facebook receiving 590 million unique visits per month, Twitter 97 million, and the professional-oriented LinkedIn 41 million.(fn8)

This growth is showing few signs of slowing. Obviously the total number of users is capped, and Facebook is already reaching 73% of the U.S. Internet population.(fn9) As a result, future growth will come in the time spent connected to social networks as they become core communications platforms. For example, Comscore reports "Facebook's average U.S. visitor engagement has grown from 4.6 hours to 6.3 hours per month over the past year."(fn10) Social media platforms are growing by adding messaging,(fn11) search,(fn12) and video communication.(fn13)

It has been predicted that "20 percent of business users will use social

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networks as their primary means of business communications by 2014."(fn14) This is based in part on the tighter integration of mobile devices, such as smartphones with address books, and on messaging over social media services.(fn15)

The uses for social media are broadening, as are the demographics of active users.(fn16) We have known for sometime that the majority (and a steadily increasing number) of Americans seek medical information on the Internet.(fn17)

Social media still lags behind "traditional" Internet destinations (such as established health web sites) for researching health information.(fn18) According to a 2009 survey by Manhattan Research, 35% of U.S. adults use social media to acquire such information,(fn19) while a 2011 survey by National Research Corporation suggests that 20% of Americans use social media websites as a source of healthcare information, with 94% of respondents saying they use Facebook for that purpose.(fn20) Trust in these sites also is increasing, though it lags behind that expressed towards hospital web sites.(fn21) Pew's The Social Life of Health Information report for 2011 found that of adults who use social network sites (46% of all adults in the United States), only a relatively small number (11% of adults) followed their friends' personal health experiences and only 7% used social media to acquire health information.(fn22) Another 2011 poll suggested that 85% of surveyed

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Americans were not yet ready to use social media or instant messaging conduits to communicate with their doctors.(fn23) However, a 2011 survey by Intuit Health found that 73% of Americans would use a secure online communication conduit with their doctor to, for example, get lab results or to make appointments.(fn24)

The Pew report, noted above, found a larger utilization of social media for health information and support by caregivers than by the general population-20% of caregivers who use social network sites use them to acquire health information, compared with 12% of other users.(fn25) Those other users are also likely to be heavy users of narrow-cast social media sites aimed at those, say, who suffer from-or support sufferers of-particular diseases.(fn26) Some of these are crowd-sourced sites such as Patients Like Me,(fn27) and use social media to create support and advocacy groups(fn28) and to accelerate clinical trials.(fn29) Other narrowcast sites have a less organic background, such as Diabetic Connect(fn30) and other sites built by Alliance Health Networks.(fn31)

The trend lines are unmistakable and remarkable. As people spend more time in social media, they will have more of their health-related experiences there as they gather and disseminate information (and misinformation). And, as patients turn towards social media, healthcare providers seem happy to provide an expanding number of destinations. Over 1,100 hospitals now have social networking sites, including over 1000 Facebook pages and nearly 800 Twitter feeds.(fn32) Exactly how many physicians use social media is difficult to determine. However, a survey published in 2011 concluded that personal

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use of social media by medical students and physicians mirrors that of the general population, with almost all medical students and 42% of physicians being on social media.(fn33) One aggregation site listed more than 1300 doctors actively using Twitter,(fn34) while one research study analyzed Twitter feeds from 260 self-identified doctors with more than 500 followers each.(fn35) Another study found that 44.5% of medical trainees had a Facebook account and that medical students were more frequent users than residents.(fn36) Even the Centers for Disease Control and Prevention published a toolkit addressed to providers promoting the use of social media "as part of an integrated health communications program."(fn37)

Use of social media by healthcare workers is also robust. A 2011 survey tracking social media use within healthcare institutions found that 84% of employees used sites such as Facebook for personal purposes and 68% for both personal and professional purposes.(fn38)

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