Article originally published in the ED LEGAL LETTER / November 2020, vol. 31, No. 11.
Social media posts may be intended just for the eyes of co-workers, friends, or family. However, an attorney could use such posts against the hospital in malpractice litigation.
“Many posts are made in frustration and at an emotional level, without thinking of the legal and regulatory implications,” says Michael Blaivas, MD, FACEP, FAIUM, an affiliate professor of medicine at University of South Carolina School of Medicine.
Blaivas has seen all kinds of problematic posts made by ED staff: Laboratory turnaround times are too long, individual emergency physicians (EPs) are incompetent, equipment is in bad shape, and more. Lawyers are getting better at finding those kinds of social media posts made by anyone even tangentially involved in the case. “Particularly skilled attorneys will know how to exploit them,” Blaivas says. “This is being done not just at the larger, well-staffed firms, but by anybody with an assistant.”
Inflammatory posts do tend to receive a stronger focus in weaker malpractice claims. “When the case has little merit, they are much more likely to look for jury distractions,” Blaivas observes.
Once they find the ED-related social media posts, plaintiff attorneys can use them in some surprising ways. An ED nurse might have posted an offhand comment about how it was a shame a deteriorating patient was ignored in the waiting room. “The plaintiff attorney can claim that you or somebody else was talking about this very case on that day,” Blaivas says.
Depending on the issue, the post could be a way to bring the hospital into the litigation. If based on state laws, the hospital ordinarily would not be liable for an EP’s malpractice. A relevant social media post could change that. “Sometimes, the laws make it very difficult to go after the hospital for anything significant. But you have now handed the plaintiff attorney an easy recipe for going after the hospital,” Blaivas says. The social media post could cause other types of legal problems. “Sometimes, it means that different kinds of claims are now available to the plaintiff, in addition to malpractice claims,” Blaivas explains.
The post could lead the hospital into trouble with regulatory agencies. If someone posts photographs of celebrity ED patients without permission, the hospital could find itself under investigation for a HIPAA violation. If someone posts, “Another patient with COVID-19 was turned away,” it could be reported directly to CMS as a possible EMTALA violation, says Danielle M. Trostorff, Esq., a health law specialist at Degan, Blanchard & Nash in New Orleans.
Some posts blatantly accuse the hospital of patient dumping or demanding payment before a medical screening exam is performed, implying an EMTALA violation. “In the first months of COVID, this was an issue as hospitals struggled to find ICU beds in other cities or locations,” Blaivas notes. Blaivas is aware of a social media post from an EP who made derogatory comments about a patient who experienced a poor outcome in the ED, which resulted in litigation. Any careless comments that could be alleged to relate to race, gender, disability, or sexual orientation “will be very challenging right now,” Blaivas cautions. “Attorneys will stretch statements out of context to the fullest.”
Any social media post that talks about inadequate staffing, lack of resources, equipment shortages, or the quality of care given to patients by certain ED providers opens up potential areas of liability for hospitals. “Perhaps you are unhappy with the way nurse X or Dr. X treats patients. If you question their competency or suspect malicious intent, those kinds of posts can really come back to haunt people,” Blaivas says. If the jury sees the posts, the defense team is stuck trying to disprove the inflammatory statements in court. The plaintiff attorney will ask questions such as “Was anyone else in the hospital aware of it?” or “Was there a cover-up?”
If a person complained in a social media post that the ED waiting room is constantly packed, the defense can assert the same is true of most EDs. “It would be easy to make the case to the jury that everyone is in the same boat. Show me a facility that doesn’t have crowding issues,” Blaivas offers. Plaintiff attorneys could counter this by displaying billboards from competitors during the same period listing short ED wait times, or advertisements inviting people to make appointments for ED visits and be seen in 10 minutes or less. The attorney could contrast these marketing messages with the social media post describing a packed waiting room. “They will say, ‘Other EDs don’t have these issues. What’s wrong with your ED?’” Blaivas says.
Blaivas has seen several ED experts discredited because of unearthed posts that undermined his or her testimony in some way. One expert posted statements passionately in favor of tort reform. Another made derogatory comments about patients who sue their providers. “All of that can come up at your deposition, or at trial,” Blaivas says. “That can really derail cases.” The expert witness is blindsided by a random post suddenly brought up in court. “Attorneys attack quite aggressively, trying to spin things,” Blaivas says.
One way to mitigate risk is for ED providers to never post anything work-related, or to invest in a service that flags all their posts for any possible negative connotations. “It’s difficult to get people to think twice about what they post, or to use a system that filters their social media. But clearly, it’s needed,” Blaivas notes. Any post made by an ED employee about the department, the hospital, or anything that occurred there could be discoverable as evidence in any lawsuit, says Shane C. Sidebottom, Esq., an attorney at Covington, KY-based Ziegler & Schneider. “Most jurisdictions will allow parties to seek discovery from a wide range of sources so long as it is relevant to a lawsuit,” Sidebottom explains.
For instance, if an ED nurse posts something negative, it is likely to be discoverable and could be used as evidence in a legal proceeding. “Generally, it is good practice for any business to have established social media policies for their employees about issuing social media posts related to their job,” Sidebottom suggests.
Trostorff says hospital social media policies usually forbid anyone from posting patient information or photographs online. In fact, the policies may forbid using any cellphones or cameras in the hospital at all. The policies also may forbid anyone from disclosing hospital proprietary business. This includes financial reports, budgetary information, workplace issues, utilization review, quality assurance, incident reports, adverse events, near misses, and credentialing. “The consequences of violating social media policies can include disciplinary action, licensure action, [and] civil and criminal penalties,” Trostorff says.
In contrast, a hospital could argue safety concerns reported through appropriate channels are free from disclosure in a malpractice case. The hospital would move to limit discovery and seek a protective order against disclosure. “It is important that hospitals have procedures in place to keep proprietary and confidential patient care, peer review, and other protected reportable information separate from disclosure,” Trostorff says.
During the COVID-19 pandemic, some ED providers disregarded hospital policies on social media posts, and openly complained the department was unprepared. “Hospitals may say, ‘We have this clause in your contract stating that you can’t be on social media disparaging our institution,’” says Rade Vukmir, MD, JD, FACEP, FACHE, president of Critical Care Medicine Associates.
Once someone does post, the question becomes whether it is admitted as valid evidence or is excluded as hearsay. “There’s a little bit of a balance here,” Vukmir observes.
If it is publicly posted, it is admissible, as there is no expectation of privacy. If it is privately posted, it is more of a grey area. “If somebody within your private network releases the information, it may not be private anymore. Some people may not recognize that,” Vukmir says. The court might set that post apart for an evidentiary hearing or for a separate discussion just on admissibility of that piece of evidence. “It’s all about balancing vs. discrimination value of allowing the evidence to be considered,” Vukmir says.
Some attorneys try to access private posts deceitfully, such as by asking someone from the office to “friend” the person through social media. “If somebody tries to get the information under false pretenses, that typically will not be admissible,” Vukmir explains. “You can’t be underhanded about it.”
Still, attorneys are actively hiring third-party abstraction firms to scour social media sites for anything that could strengthen their cases. Additionally, once something is posted, it is permanent. It is fair game for lawyers to access it, even if it has to be handled by forensic retrieval analysis or subpoenaing the deleted posts for the site. If someone regrets a publicly posted comment and deletes it, says Vukmir, “it was up and it existed; technically, this may be viewed as destruction of evidence.”