Michael J. Sacopulos
I am a partner with Sacopulos, Johnson & Sacopulos, in Terre Haute, Ind. My core expertise is in medical malpractice defense and third-party payment disputes, and I serve on the National Counsel for Medical Justice. As PSP‘s resident legal expert, I will respond to legal questions you may be facing in your practice. Questions can be submitted by sending an e-mail to email@example.com.
Q: Our practice is working on building our social media presence on the Internet by way of Facebook and Twitter. Could we add a check box to our paperwork, asking our patients if they would like to be friends with us or follow us on Facebook and Twitter? Can we legally seek these patients out on Facebook and Twitter to befriend or follow, once they have checked this box on their paperwork?
A: Any electronic communication with a patient that is not encrypted should be approved first in writing by the patient. This means if you want to e-mail a patient, you should have the patient’s preapproval in writing to receive future e-mails.
I have spoken to federal officials that say if the patient e-mails your practice, it is assumed that the patient has given his or her approval for the practice to respond via unencrypted e-mail. This means that the practice would need to get written permission to send a message via Facebook. Some might argue that the content of the message does not link the patient to the practice and thus is not covered by HIPAA. So, the request/message language is important to the overall situation.
More significantly, by using a Friend Page, others can see the practice’s patients. Among other things, this could create a marketing fiasco. Most people create a Fan Page and restrict who can be a fan. This is less of a HIPAA issue and more of a state board of medicine issue. Some societies and health organizations (the Mayo Clinic, for example) deem it unprofessional for a practice/physician to “friend” patients. The Fan Page on Facebook would seem to bypass many of these issues. In truth, there is little in the way of firm guidance at the moment. I am sure that rulings and cases will flow forth in the months and years ahead.
I suggest that you ask patients to follow the practice on Twitter and create a Fan Page on Facebook. You may want to ask permission to forward general practice information (upcoming promotional offers, for example, but not medical content) to the patient via social media. Finally, each practice should have employees and business associates sign a social media policy.
Q: Some time ago, one of my staff members informed me of a disturbing posting on the Internet. The posting referenced me in a hurtful and a factually incorrect manner. Initially, I decided to try to ignore the post, but recently I have had several patients ask me about it. I now want to take action but fear that I may have waited too long. How much time do I have to file a defamation suit against the individual who put up the malicious posting?
A: Your question refers to a statute of limitations, which sets forth the time in which an individual can bring a cause of action. Statutes of limitation can vary depending upon the nature of the case (typically longer for written contracts than for personal injury claims) and the state in which the action would be brought. The statutes of limitation for defamation and libel typically range from 1 to 3 years, depending upon where you live.
Traditionally, there has not been much difficulty in calculating statutes of limitations for defamation/libel cases. You would simply look at the date the material was published in a magazine or newspaper and start to run the clock. The Internet poses new problems in calculating statutes of limitations. Some have argued that the material is being perpetually published on the Internet. Therefore, the statute of limitation never expires on something that remains up on the Web.
Thankfully, we now have some guidance from a Federal Circuit Court. In April of 2011, the 2nd Circuit Court of Appeals ruled in Van Buskirk v The New York Times on this very issue. The Court ruled that the traditional “single-publication rule” applies. This means that the statute of limitations for posting on the Internet would start from the date the material was first posted online.
The Court found that New York’s 1-year statute of limitations began to run on the date that the offending material was posted to the Internet pursuant to the single publication rule. Based on this ruling, you will need to calculate whether or not your claim against the malicious poster is timely.
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