Overcoming the Legal Risks of New Media and Electronic Communication

Jeffery P. Drummond Jackson Walker L.L.P. 901 Main Street, Suite 6000 Street Dallas, Texas 75202 (214) 953-5781 j jdrummond@jw.com @j www.hipaablog.blogspot.com

What do you mean by

Web 2.0?

HealthCare People:
 2008

definition:

“. . . the so-called “Health 2.0” applications such as information portals, li i h i f i l patient messaging, home health applications and personal health-record systems . . . .”
-Modern Healthcare, April 6, 2009

Information Technology people:
 2010

definition:

 Blogs  Microblogs

(Twitter)  Social Networks (Facebook, MySpace)  Video (Youtube)  Wikis

What is healthcare doing today?
    

Surgery tweeting Video webcasting of surgery Medblogging M dbl i “Sick” blogs Consultants using Web 2.0 (particularly blogs and Twitter)

“The f t i th t h lth “Th fact is that healthcare marketers k t can’t just jump onto the Twitter j j p bandwagon without having a solid communications plan and marketing strategy in place and also explaining clearly what they’re doing.”
-- Glenna Shaw, Healthleaders Media, June 3, 2009

“Give me a break. Twittering surgeries will quickly disappear as soon as risk management lawyers take notice of it.

-- Kerry Faunce, commenting on the same article

Big Picture Legal Issues
 Potential

problems/issues from the patient’s perspective:
Privacy  Dignity/Presentation  Motive (public education or family information)  Care

Basic A B i Answer: A th i ti Authorization

Big Picture Legal Issues
 Potential

problems/issues from the public’s perspective:
Who: other patients, potential patients  Attitude:

Skeptical (is this for real?)  Misinformed (surgeon drops his scalpel to tweet?)  Concerned (you’re not tweeting about me, are you?) (y g y )

Basic Answer: Education

Big Picture Legal Issues
 Potential

problems/issues from the organization’s perspective:
Legal  Intellectual Property  Constitutional/organizational g

Nonprofit organizations  Governmental entities  “R “Reputation management” t ti t”

Basic Answer: Policy

Specific Legal Issues
     

HIPAA Spam S Advertising laws Responsibility for user-generated content Ownership of content p SEC issues

Specific Legal Issues: HIPAA
  

What are covered entities (and business associates)? What is PHI? How to avoid disclosures

Impact of improper disclosures – data breach reporting

Marketing Restrictions g

Specific Legal Issues: HIPAA

Covered Entity:

Health care provider

Doctor  Hospital  Other

Health Plan  Healthcare Clearinghouse

Business Associate:

Contracts with/serves Covered Entity

Specific Legal Issues: HIPAA

PHI:

Protected Health Information: Information about the past, present, or future healthcare condition, treatment, or payment if it i possible t id tif th t t t t is ibl to identify the individual from the information.

Basic Rule: Covered entities and business associates may not use or disclose PHI except for specified purposes (for example, treatment or p p p ( p payment) or with the individual’s specific permission.

Specific Legal Issues: HIPAA

Problem with Improper Disclosure
Fines and penalties  Potential legal damages  Public reporting may be required

 

Public Relations uses are not generally excepted So, patient authorization is required

Authorizations have specific requirements; make sure your form meets HIPAA specs specs.

Specific Legal Issues: HIPAA

Marketing Restrictions:
 HIPAA  Geared

contains specific marketing restrictions t i ifi k ti t i ti more toward uses than disclosures

Specific Legal Issues: Spam

Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (or “CAN-SPAM Act”):
 Emails sent

for advertising product or service  Limits use of email addresses obtained by automated address generation means

Specific Legal Issues: Advertising

Federal Issues
 General:

FTC fair trade practices  Specific: FDA marketing rules

State Law issues:
 State

DTPA and fraud statutes  State HIPAA or medical record laws  Rules of regulatory agencies  E.g., Board of Medical Examiners

Specific Legal Issues: Ad S ifi L lI Advertising ti i
 

General overriding issue: Advertising may not be false or g g y misleading. Does your Web 2.0 effort count as “advertising”?

Specific Legal Issues: User-Generated Content

Communications Decency Act of 1996:
ISP companies are generally immune from liability for third-party content that appears on their internet forums or websites.  ISPs that shape or direct the contributions of content may not be subject to the safe harbor.

Control your content, or make appropriate disclaimers.

Specific Legal Issues: Ownership of Content
    

Copyright: website content is copyrightable. Who owns the copyright to the content third py g parties put on your site? Are they works for hire ? hire”? Protecting your own copyright Preventing the unwitting use of content the copyright of which is owned by another party

Specific Legal Issues: SEC Issues
Regulation FD (fair/full disclosure):  Information on company website is likely a public p y y p disclosure by the company for purposes of Regulation FD  If so, information posted on the website cannot contain false or misleading information or omit information necessary to make the information provided not misleading

Specific Legal Issues: SEC Issues
Antifraud provisions:  Antifraud provisions apply to statements on p pp y company websites  Previously posted materials that remain available yp aren’t necessarily “republished” for antifraud purposes, but might need to be segregated on the company website to avoid confusion.

Specific Legal Issues: SEC Issues
Hyperlinks to third party sites:  Simply linking does not mean endorsement py g  But, it could, even if you don’t mean it  Whether it is will depend on:
What your site says about the hyperlink  Whether you have a disclaimer  How the hyperlink is presented

Consider click-thru screens or exit notices

Specific Legal Issues: SEC Issues
Company sponsored blogs:  Employees posting speak  for the company Electronic Shareholder Forums  Generally, information posted here is not considered to be a company statement or disclosure, but could be if the company adopts or endorses the statement Consider disclaimers either way

Specific Advice

Monitor the web for comments about your company (don’t forget Web 1.0)
    

Know what is being said about you for commercial g y reaction purposes Know if your copyrighted material is being breached Correct improper information if possible Be aware that failure to do so might constitute adoption of the information or statements Look for inadvertent or intentional violations by your own people

Specific Advice

Adopt policies and procedures
   

Control your website Control your official external Web 2.0 activities Gain authorization from patients to avoid HIPAA Gain permission for third party potentially third-party potentiallycopyrighted information

Specific Advice

Legal Review
 

At least high-level and periodic legal review Depending on operations, at least have approval of forms, formats, and posting rules , , p g Appropriate delegation of authority Board approval

 

Finally, Finally Consider Dr. Flea Dr
  

 

Robert Lindeman, MD, Boston-area pediatrician Lindeman MD Sued for malpractice His “anonymous” blog “Dr Flea ” ridiculed the anonymous blog, Dr. Flea, plaintiffs and their lawyer, disclosed defense trial strategy, and bad-mouthed the jurors gy, j Plaintiff’s lawyer exposed him during the trial as Dr. Flea Lindeman knew she would expose him to the jury, so he settled for a substantial sum

Overcoming the Legal Risks of New Media and Electronic Communication
Jeffery P. Drummond Jackson Walker L.L.P. 901 Main Street, Suite 6000 Street Dallas, Texas 75202 (214) 953-5781 j jdrummond@jw.com @j www.hipaablog.blogspot.com

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