With MICHAEL J. SACOPULOS
Question: Our practice is working on building our social media presence on the internet by way of Facebook and Twitter. One of the best ways for us to effectively utilize these social media avenues is to grow our friends on Facebook and our followings on Twitter. I have a two part question for you. Could we add a check box to our paper work, asking our patients if they would like to be friends with us or follow us on the networks? Can we legally seek these patients out on Facebook and Twitter to befriend or follow, once they have checked this box on their paperwork?
Michael J. Sacopulos: I have had several thoughts on this topic. First, 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 pre-approval in writing to receive future e-mails. I had spoken to federal officials that say if the patient e-mails the practice, it is assumed that the patient has given his/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. (Note some could 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.)
The bigger issue I see is, by using a "Friend" page, others can see who the practice’s patients are. 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 (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 absolutely have employees and business associates sign a social media policy.
Question: Sometime 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?
Michael J. Sacopulos: Your question refers to what lawyers call a statute of limitations. A statute of limitation sets forth the time in which an individual can bring a cause of action. Statutes of limitation can vary between depending upon the nature of the case (typically longer for written contracts than for personal injury claims) hence the state where the action where be brought. The statutes of limitation for defamation/libel typically range from one to three years depending upon where you live.
Traditionally, there has not been much difficulty in calculating the statutes of limitation 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 perpetually being 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 this year, the 2nd Circuit Court of Appeals ruled in Van Buskirk vs. The New York Times on this very issue. In there the Court stepped down 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 the New York states one year statute of limitations begin to run on the date that the offending material was posted to the Internet pursuant to the single publication rule. Based off of this ruling you will need to calculate whether or not your claim against the malicious poster is timely.
Michael J. Sacopulos is a Partner with Sacopulos, Johnson & Sacopulos, in Terre Haute, Ind. His core expertise is in medical malpractice defense and third party payment disputes. He also serves on the National Counsel for Medical Justice. Sacopulos will respond to some of the medical/legal questions you may be facing in your practice. Answers to many of your questions will be shown in upcoming issues of PSP and online at plasticsurgerypractice.com. We hope that you find this addition useful. Questions can be submitted to him by sending e-mail to email@example.com.
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