The delivery of healthcare services has been profoundly impacted by social media. The virtual dialog that is occurring on social media right now, presents an opportunity to improve public health. However there are numerous legal risks posed by social media such as privacy concerns, confidentiality of patient information, and the specter of litigation and professional liability. Professional licensure and medical ethics are also challenged by social media. Of paramount concern is the legal relationship of doctor and patient. The intimate relationship gives rise to an absolute privilege of evidence and testimony. A physician cannot be compelled to disclose confidential information about his/her patient. This fundamental tenet may be at risk when private patient information is made public, as on social media. Erosion of the privilege could radically alter the healthcare landscape.
Prior to the ubiquity of the Internet, individuals relied on their physicians as their exclusive source of healthcare information. Parents may have self-supplemented their doctors’ advice by reading, for instance, Dr. Benjamin Spock’s best-seller Baby and Child Care and other texts. But it was not until the advent of Google, WebMD, and Wikipedia that patients became curious consumers of healthcare information. Not all of the information that is available online is reliable, but some of it is accurate. Many individuals use this database of information and misinformation to self-diagnose, self-prescribe and understand their healthcare conditions. Informed and misinformed patients alike have posed diagnostic and treatment challenges for physicians.
The Internet’s world of frozen-in-time webpages has been replaced by interactive social media such as Facebook. Social media has created an online environment of virtual reality, which also exists in healthcare. Realtime interaction takes place, especially on the Twitter and Facebook Live platforms. Anonymity and a sense of immediacy leads users to feel more comfortable and willing to discuss and share healthcare information. Virtual public debates rage concerning the efficacy of drugs, breast cancer screenings, vaccinations, and other controversial public health issues. People are using social media to connect with others affected by similar conditions and to share experiences. The volume of anecdotal and observed evidence that is available on social media platforms provides a wealth of information for physicians to evaluate when prescribing pharmaceuticals and designing patient treatment plans. Formerly, practitioners could observe only limited populations, predominantly their own patients. In contrast, today they can virtually observe and hear about the experiences of large populations. This vast virtual world will lead to better analysis and diagnosis if providers take advantage of the opportunity.
To highlight the wide public acceptance of social media as a source of medical information, there were 785,656 posts on Facebook in 2015 relating to arthritis. The enormity of these patient observations and comments provides a useful and underutilized tool for providers, drug manufacturers, and others. These Facebook posts contain valuable feedback about the efficacy of medications, consumers’ experiences, and side effects. Due in part to the vastness of data that is available for review, social media aggregates data and makes it readily available to practitioners and the public alike.
The demographics of the people who post online are not always representative of key constituencies. Today the millennial generation is most engaged with providing and relying upon healthcare information found on social media, but this demographic will undoubtedly spread across age and income groups as the social media platform matures. Research is currently being conducted to examine the reliability of cloud-based empirical evidence.
Social media has become an important source of outcomes-based measurement. These measured results may enable providers to deliver more effective treatments. However, the untested nature of Big Data raises questions about the validity of virtual evidence. Its credibility has not been vetted. Some information is purposely planted on social media as fake news, including in the healthcare space. In other instances, social postings are improperly posted to commit industrial sabotage, to harvest data for marketing, and other unsavory purposes. Oftentimes, information found on Twitter and YouTube is inaccurate or controversial. As with the Internet’s WebMD and Google search results, incorrect information can pose life-threatening consequences to individuals who pay it heed.
Social media’s palette of disinformation can cause injuries and with them, the potential for legal liability. Even more significantly, health information that is not kept private online may give professional liability insurance carriers the opportunity to deny coverage claims.
Paul Rubell is a Partner in the Corporate Department at the law firm Meltzer, Lippe, Goldstein & Breitstone, LLP. Mr. Rubell is a graduate Georgetown University Law Center and an Adjunct Professor at Touro Law School.