PHI is defined under HIPAA, in part, as health information that (i) is created or received by a physician, (ii) relates to the health or condition of an individual, (iii) identifies the individual (or with respect to which there is a reasonable basis to believe the information can be used to identify the individual), and (iv) is transmitted by or maintained in electronic media, or transmitted or maintained in another form or medium. Under HIPAA, a physician may use and disclose PHI for treatment, payment or healthcare operations. Generally, using or disclosing PHI through social media does not qualify as treatment, payment or healthcare operations. If a physician were to use or disclose a patient’s PHI without permission, this would violate HIPAA (and likely state law).
To use or disclose a patient’s PHI without obtaining the patient’s consent, a physician must de-identify the information and ensure there is no reasonable basis to believe the information can be used to identify the patient. One option under HIPAA is to retain an expert to determine “the risk is very small that the information could be used, alone or in combination with other reasonably available information, by an anticipated recipient to identify an individual who is the subject of the information.” Alternatively (and more often the case), a physician seeking to use or disclose patient PHI can remove the following identifiers from the PHI:
- Name(s);
- Geographic information;
- Dates (e.g., birth date, admission date, discharge date, date of death);
- Telephone numbers;
- Fax numbers;
- E-mail addresses;
- Social Security numbers;
- Medical record numbers;
- Health plan beneficiary numbers;
- Account numbers;
- Certificate/license numbers;
- Vehicle identifiers and serial numbers, including license plate numbers;
- Device identifiers and serial numbers;
- URLs;
- IP address numbers;
- Biometric identifiers (e.g., finger and voice prints);
- Full-face photographic images and any comparable images; and
- Other unique identifying numbers, characteristics or codes.
Identifier No. 18 is the most difficult to comply with in light of the significant amount of personal information available on the Internet, particularly through Google and other search engines. Inputting even a small amount of information into a search engine will generate relevant “hits” that make it increasingly more difficult to comply with the de-identification standards under HIPAA. Even if Identifier Nos. 1–17 are carefully removed, the broadness of Identifier No. 18 can turn a seemingly harmless post on social media into a patient privacy violation.
Do not let the following examples be you.
Case Studies in Mistakes
An emergency department physician in Rhode Island was fired, lost her hospital medical staff privileges and was reprimanded by the Rhode Island Board of Medical Licensure and Discipline for posting information about a trauma patient on her personal Facebook page. According to the Rhode Island Board of Medical Licensure and Discipline, “[She] did not use patient names and had no intention [of revealing] any confidential patient information. However, … the nature of one person’s injury was such that the patient was identified by unauthorized third parties. As soon as it was brought to [her] attention that this had occurred, [the physician] deleted her Facebook account.” Despite the physician omitting what she thought was identifiable information about the patient from her post, she apparently did not omit enough information.
An OB-GYN in St. Louis took to Facebook to complain about her frustration with a patient: “So I have a patient who has chosen to either no-show or be late (sometimes hours) for all of her prenatal visits, ultrasounds, and NSTs. She is now 3 hours late for her induction. May I show up late to her delivery?”
This post was then commented on by another physician: “If it’s elective, it’d be canceled!”
The OB-GYN at issue then responded: “[H]ere is the explanation why I have put up with it/not cancelled induction: prior stillbirth.” Although the OB-GYN did not reveal the patient’s name, controversy erupted after someone posted a screenshot of the post and response comments to the hospital’s Facebook page. The hospital issued a statement indicating that its privacy compliance staff did not find the post to be a breach of privacy, but the hospital added it would use this opportunity to educate its staff about the appropriate use of social media. Many believe this physician got off too easy.
Penalties for Privacy Breaches
The penalties for patient privacy violations (or even alleged patient privacy violations) are multifaceted. Not only can the federal government impose civil and criminal sanctions under HIPAA on the physician and affiliated parties (e.g., physician’s employer, hospital), but states can also impose penalties. State-imposed penalties for patient privacy violations vary by state.
Additionally, the violating physician and affiliated parties may also be sued by the patient for privacy violations. Although HIPAA does not afford patients the right to bring a private cause of action against a physician, state law may grant patients such a right.
Also, state medical boards often have the right to impose penalties on a physician for privacy violations. The penalties may be monetary or take the form of suspension, termination of medical licensure or other consequence.
We have heard reports that people who like, share, re-tweet or comment on inappropriate social media posts are getting reprimanded as well.
Lastly, the reputational harm associated with an inappropriate post on social media is immeasurable, especially in light of the availability of information on the Internet. Unfortunately for the physicians described above, when entering their names in a search engine, instead of seeing their professional accomplishments and prestigious educations, the top hits are news articles reporting on their inappropriate posts.
Post with caution.
Steven M. Harris, Esq., is a nationally recognized healthcare attorney and a member of the law firm McDonald Hopkins LLC. He may be reached at [email protected].
