(Guest post by David Harlow) @healthBlawg
I received a “friend request” on line this week from a student in a graduate school course I just finished teaching. I think I’ll wait until I grade all the exams and post the grades before I consider accepting the request.There are a lot of strongly-held views on whether or not it is OK for a doctor to “friend” a patient, or accept a friend request, on line. For people of a certain age, it is inconceivable that a physician would refuse such a request. The social web is their milieu, and they expect to interact with friends, family members and all other sorts of contacts on line. For all the snap judgments us older folks are prepared to make, however, research has shown that the twentysomethings and thirtysomethings are fairly protective of their online privacy, making appropriate use of privacy restrictions and filters available on the social networks they use — connecting widely, but keeping their cards close to their vests, as it were. But back to the question of the moment: should a physician accept a patient’s friend request? Before leaping to the negative answer that many of you would expect from a lawyer, let’s consider the pros and cons. What if the physician and patient really are friends (IRL, or “in real life”)? Then it seems more natural to say yes. They communicate IRL as friends, so why not on line? The problem with the online communication is that it may not be 100% private, and there is the potential for losing control of the communication (more so than in real life, hence the heightened concern by soem folks over the adoption of EHRs). And any public notice of the mere fact of the relationship between patient and doctor may be considered a breach of a confidential relationship. (By the way, the same sort of concern may be raised with respect to a lawyer connecting with clients on Linked In — aka Facebook for grownups.) But wait a minute, you say. The patient has affirmatively decided to “friend” the doctor, thus giving consent to the publication of the fact of their connection. The fact that physician and patient are “friends” does not necessarily put the world on notice about the nature of their relationship. Well, is this really “informed” consent? Does the patient really understand the implications of this consent? Without being overly paternalistic, I tend to think that many peole do not think through these sorts of implications when seeking to “friend” a physician on line. It may become possible for third parties to divine the nature of the relationship (particularly — but not only — if the patient experiences lapses of judgment, such as requesting a prescription refill on Facebook). Given the recently proposed expanded privacy, security and enforcement rules under HIPAA, as amended by the HITECH Act, health care providers need to be extra careful, because any unauthorized disclosure of protected health information — and the fact of the provider-patient relationship is in itself protected health information — could lead to severe sanctions, up to and including heavy fines (maxing out at $1.5m/year per type of violation for the truly ill-intentioned or reckless) and even criminal penalties. The HITECH Act also allows state attorneys general to get in on the act and enforce HIPAA, and there may be pent-up demand in state capitals across the country to flex some muscle and make examples of health care providers who violate HIPAA restrictions on disclosure of protected health information. As I tell my clients: You don’t want to be a test case. Even if you win, you lose. In order to steer clear of potential liabilities, health care providers using social media need to educate their patients about what they can expect form them in terms of privacy protection and in terms of online interactions. They should have clearly stated policies and procedures posted on their Facebook pages, etc., announcing that they do not accept “friend requests” from patients. Given the multitude of platforms and options available to providers, however, there is no need to eliminate all possible interaction. Patients seeking to “friend” a physician on a personal page should instead be encouraged to become a “fan” of the physician’s practice page on Facebook, or take an analogous step on other networks. While the less personal approach may seem uncomfortable to some, I would suggest that the potential dangers inherent in being too “friendly” with patients on line are no different from the inherent dangers in being too friendly with patients IRL. David Harlow, a Boston-based health care lawyer and consultant, blogs at HealthBlawg. You should follow him on Twitter: @healthblawg.
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