Clearly, the explosion of social media use has changed the way almost all business and organizations communicate with customers, employees and the general public. According to a recent study by Arbitron Inc. and Edison Research Inc., approximately half of all Americans have a social-media profile, and approximately 46 million Americans check their social media profiles each day. Tom Webster, The Social Habit II: The Edison Research/Arbitron Internet and Multimedia Study 2011 (2011), available at www.slideshare.net/webby2001/the-social-habit-2011-by-edison-research; Jeff Esposito, Social Media Stats for the C-Suite, Social Media Today, June 27, 2011.

But it might be surprising to learn that 80% of Americans who use the Internet (or roughly 60% of all Americans) use it to search for health information, according to a Pew Internet study. ABC News Radio, "One in Four Tracks Health Data Online, Survey Finds," May 12, 2011, available through Pew Research Center’s Internet & American Life Project at www.pewinternet.org/Media-Mentions/2011/One-in-Four-Tracks-Health-Data-Online.aspx.

Providers seeking to reap the benefits of these Web site and social-media tools must do so with caution, given the potential legal risks illustrated below.

In addition to more traditional Web-based searches for information on health care-related Web sites, patients are using social-media sites to peruse information related to health care conditions, products and services. For example, patients look to sites such as Angie’s List for recommendations or reviews about specific providers. As one might expect, YouTube is the second most popular search engine, but what is surprising is that searches for health care information on YouTube outpace searches related to shopping and travel.

Many patients search for ads and social-media pages when choosing providers, although most still prefer to browse Web sites or a mixture of both Web sites and social-media pages. Patient social-network communities are also flourishing. These patient communities enable patients to connect with family and friends to obtain support and encouragement, or to meet in online support groups with others facing similar conditions, all of which can serve to decrease stress for the patients and their families. They also enable patients to share their experiences about providers, treatments, products or procedures and to obtain general information about a specific diagnosis or condition.

However, the information contained on the Internet is not always accurate, and health care-related information is no exception. Therefore, the ability of providers to control the dissemination of health care information can be beneficial to the provider and patient alike.

As the expression "social media" implies, social-media sites such as Face­book, Twitter, LinkedIn and YouTube predominately have served as a means for individuals to network, reconnect and/or keep in touch or meet new people. Because of the widespread use of social media, businesses began to see the utility in connecting and communicating with customers and potential customers and constituents through social-media platforms. Hospitals and health systems have more recently begun to recognize the advantages of using social-media networks to convey their message and provide more accurate information to patients and the community.

TWEETING DURING PROCEDURES

As of June 2011, according to Ed Ben­nett, director of Web operations at the University of Maryland Medical Center and a member of the Mayo Clinic Center for Social Media advisory board, 1,188 hospitals were using social media. Ed Bennett, "Found in Cache," available at www.ebennett.org. Hospitals with social-media profiles use social networks to market their services, provide information about new procedures or the addition of new physicians to the staff, conduct patient outreach and provide general patient education, including information about disease prevention and wellness. Some organizations have established blogs to discuss health care issues, and other health systems have hired social-media directors. Many have prepared YouTube videos to provide education in an entertaining and informative way. Some physicians and patients are posting live video of, or tweeting during, procedures. Other hospitals and health systems are using social media in connection with fundraising campaigns. One of the most prevalent and successful uses of social media by health care organizations is recruitment.

While social media’s potential to reach such a widespread audience is a marketing dream, it can become a risk-management nightmare. When people post comments using social media, the communications tend to be informal streams of consciousness or simple sound bites. Strategically created sound bites can be a powerful marketing tool if catchy and on point. However, a sound bite may be taken out of context, convey an unintended tone and even be erroneous if the post is incomplete. Additionally, most users have a false sense of privacy or confidentiality when using Facebook, and it is important to keep in mind that staff members and patients alike often share this misconception.

As a result of these attributes that set social media apart from other forms of communication, a myriad of legal issues may arise from the use of social media by physicians, staff members and others within the organization. First and foremost, certain social-network communications may implicate privacy laws. A Google search will easily uncover horror stories involving the posting on Facebook of pictures of, or comments about, patients by hospital staff. The use of cellphone cameras and other electronic devices by patients and visitors within the hospital may pose similar privacy issues. A number of potential issues are raised if physicians (or other independent practitioners) "friend" patients. In such situations, physicians need to be sensitive about providing patient-specific medical advice, as such communications not only raise privacy concerns (and potential ethical or licensure violations as well), but also could be construed as creating a physician-patient relationship where none otherwise existed.

Such a relationship, if shown to exist, could lead to issues of patient abandonment if such "care" is not continued. If the patient is located in a state other than the one in which the physician is licensed to practice, licensure issues may arise. Consider also the situation in which a colleague sees a picture of a licensed practitioner clearly intoxicated just hours before being scheduled for work. The person seeing such pictures may have an ethical obligation to report the colleague to the appropriate licensing board if there are concerns about on-the-job impairment.

Moreover, content of social-network discussions is essentially permanent once posted and may be discovered in litigation regarding any of these issues or in a malpractice suit.

Additional problems may arise based on the nature or content of a given statement. There have been several cases involving claims of defamation as a result of postings made online, and employees have been fired as a result of their tweets about their employer — although in at least one instance, the National Labor Relations Board intervened, alleging that the employee was wrongfully terminated. In re American Medical Response of Connecticut, Case No. 34-CA-12576 (filed Oct. 27, 2010) (settled February 2011).

Specific content may lead to claims of harassment. This can arise as a result of posts by a staff member about a patient, or in the context of a supervisor or manager "friending" a subordinate. These scenarios can prove particularly problematic, as disciplinary action taken by the employer as a result of such conduct can implicate labor and employment laws if without basis or in a discriminatory fashion.

Similarly, methods used by hospitals or health systems to review and monitor social-network sites in their recruitment efforts as well as with respect to existing employees, and the hiring and firing decisions that are made based on the information contained on such social-network sites, can raise privacy, security and labor and employment law issues if done in a discriminatory or disparate manner.

Even posts "sponsored" by the organization will need to be carefully crafted to ensure that they are accurate and complete and do not run afoul of consumer-protection laws or make guarantees of results. Providers need to avoid marketing tools such as the use of coupons (such as Groupon), which can raise regulatory concerns, particularly if provided for services that are reimbursable by Medicare, Medicaid or other federal health care programs. While these concerns are no different from those posed by traditional marketing efforts, the same vetting process needs to be used in connection with social-media postings.

Many patients (and staff) use social-media platforms to vent and complain, but also to convey compliments. Although providers may not be able to control what is said by patients or, in many instances, staff, providers can use social media to convey their messages and to provide accurate, timely and reliable information. To that end, social-media platforms should be embraced as an essential supplement to the other tools that providers use for marketing and other forms of communication. It is vital, however, that facilities adopt, implement and enforce a social-media policy that enables employees to use social media in a responsible and appropriate manner, in compliance with applicable laws.

Pamela E. Hepp (pamela.hepp@bipc.com) is a shareholder in the Pittsburgh office of Buchanan Ingersoll & Rooney. She concentrates her practice on issues affecting large health care institutions, including complex transactions, medical staff matters and regulatory issues.