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Twitter This:Social Media & Hospitals

Jenna Mooney, Partner

Ingrid Brydolf, Partner

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Overview

Social media can be useful to providers: What is it? How is it being used?

Providers have legal obligations. Providers should be proactive with

maintaining control over content and establishing institutional policies on appropriate use.

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What is Social Networking? Broad range of Internet activities

Texting Chat rooms Emails Blogging Videos

Easily accessible Work computers Home computers Mobile smartphones and other devices

Inherent risks Immediacy Global reach Searchable “Email is Forever” Expectation of a dialogue

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Online Social Networking Exploding Facebook

>400 million users worldwide 2009 revenue: >$550 million 8 billion minutes spent on Facebook each day Increasing corporate marketing use

Twitter “Tweets” – max. of 140 characters Celebrity usage – Lance Armstrong, Brittany Spears Corporate use growing exponentially Over 55 million users / month and growing Largest user demographic: 35-49

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Online Social Networking Exploding LinkedIn

Facebook for professionals Over 50 million registered users

MySpace Similar to Facebook Less than half the users at over 100 million

YouTube Online videos

Blogs The original social networking tool

Non-provider hosted sites (external sites) Different legal obligations may arise when a provider hosts blogs and

other media on its own servers

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What’s in it for Health Care Providers?

April 2010: Hospitals have established: 250 YouTube channels 300 Facebook pages 400 Twitter accounts

Social Media is useful to Providers: Launch innovative advertising/marketing campaigns Provide patients & families with information Remain competitive with other providers that have

established social media presences. Use in hiring and firing staff?

Possible discrimination claims?

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Legal Obligations: Confidentiality

Providers are ‘covered entities’ under HIPAA & state law

Affirmative legal obligation to safeguard protected patient information Patient names, addresses, email addresses

Creating social media content does not implicate privacy laws as long as providers do not post patient information without authorization

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Legal Obligations: Practice of Medicine

Interactions with patients Malpractice risk Disclaimers (character limits with some media) Licensure issues Privacy Boundary issues

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Legal Obligations: Disclaimers

Given informal nature of social media, providers can remind online visitors that posts are public: “This is a public site. Please do not post

personal information about yourself or others, including medical information.”

Note: outside scope of this presentation, but with institution-hosted media (e.g., blogs), a more complete terms & conditions notice may be appropriate.

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What’s in it for Health Care Providers?

Can you say 11,000,000 hits?

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Administrative Controls

Wide range of administrative controls available to providers that establish social media presence

Facebook: Content posting restricted to page administrators

only (public cannot post content) Closed group – persons must formally request to

“join” group before having posting access

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Employee (Mis-)Use of Social Networks

For personal purposes, at work For personal purposes, impacting your business

Bad-mouthing the company Trade secrets theft Harassment

At work, for business purposes Monitoring comments on hospital services Answering consumer questions Promoting services / education Research

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Why Health Care Providers Should Care

61% of employees say that even if employers are monitoring their social networking activities, they won’t alter behavior

74% of employees believe it is easy to damage a brand’s reputation via social networking sites

53% of employees say “social networking pages are none of an employer’s business.”

*Per Deloitte’s 2009 Ethics & Workplace Survey

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Why Health Care Providers Should Care

Only 17% of companies have programs in place to monitor and mitigate reputational risks

Only 22% of employers have formal social networking policies

*Per Deloitte’s 2009 Ethics & Workplace Survey

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Employer Injury

Injury to corporate reputation Employee "venting" transmitted instantly to ever-

growing audience

Possible liability for employee postings Defamation Copyright infringement False advertising claims Discrimination/harassment Medical information (HIPAA/GINA)

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Employer Liability

Electronic discovery issues A new kind of “electronically stored information” (ESI) Social media data is typically not stored on employer’s network

or system National Labor Relations Act issues

Can be “protected, concerted activity” Blogging about unfair employer policies Applies to all employees, not just unionized workers

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What Should Employers Do? Develop a policy now – don’t wait for the crisis

Convene working group to draft: HR Legal IT Marketing PR/Corporate Communications Employee users

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Social Media Policy Considerations

What is your culture? Separate or integrated policy?

Allow or block access to social media websites?

Distinguish between professional use and personal use?

Extent to which provider equipment and networks can be used for social media?

What are your needs? Use of social networking to generate business?

Use of social networking in hiring / firing process?

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Social Media Policy Considerations

Duty to bargain with unions regarding policy?

Cross-reference in other policies? Anti-harassment and nondiscrimination

HIPAA/GINA confidentiality

Codes of ethics

Legal review of proposed employee terminations for social networking activity

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Social Media Policy

Providers should: Adopt a Social Media Policy for

employees and staff Educate staff about the contents of the

Policy Enforce policy through imposing

consequences for violations

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Social Media Policy: Adopt

Policy should: Set rules for what information staff can post and

say online Remind and educate staff about obligations –

patient privacy, protecting proprietary institutional information

Clarify appropriate relationships between staff, patients and the public

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Social Media Policy: Educate & Enforce

Educate: Any policy is only as good as the

institutional awareness of it Know the policy; educate staff at hire and

push periodic updates

Enforce: Follow through with penalties for violations

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Social Media Policy: Provisions & Examples

Policy statement: “Employees can use social media for business-related purposes subject to restrictions in this Policy to ensure compliance with legal requirements and institutional policies.”

Scope of policy – separate provisions for institution-hosted and externally hosted sites.

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Social Media Policy: Provisions & Examples

Rules for use: Maintain patient privacy Respect patients and other staff – no libelous or

defamatory speech Safeguard proprietary institutional information Comply with copyright, trademark and other law Do not communicate on “behalf” of institution No patient-specific medical advice

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Questions?