This ongoing column is dedicated to providing information to our readers on managing legal risks associated with medical practice. We invite questions from our readers. The answers are provided by PRMS, Inc. (www.prms.com), a manager of medical professional liability insurance programs with services that include risk management consultation, education and onsite risk management audits, and other resources to healthcare providers to help improve patient outcomes and reduce professional liability risk. The answers published in this column represent those of only one risk management consulting company. Other risk management consulting companies or insurance carriers may provide different advice, and readers should take this into consideration. The information in this column does not constitute legal advice. For legal advice, contact your personal attorney.
Psychiatry (Edgemont) 2010;7(8):50–52
Question: My colleagues and I are considering adding a link to a popular psychiatry blog to our group practice website. A few of my colleagues have expressed some concerns about our lack of control over the content of a separate blog, and they believe it would be less risky to start and monitor our own blog. We would provide educational materials and case studies, and then otherwise invite discussion of the same from physicians, patients, and the general public. Is there any specific risk management advice with regard to either hosting or contributing to blogs?
Answer: Blogs, or journal-style websites whose author(s) publish content over time, are becoming increasingly prevalent. An article in the Journal of General Internal Medicine in 2008[1] reported an estimated 70 million blogs in existence, and more than 100 thousand new blogs created every day. Blogs can be whatever their author(s) want them to be, from a stream-of-consciousness rambling to a well-planned repository of educational information on an identified subject.
Blogs are used by corporations,[2] media outlets,[3] and private citizens alike. Although it is difficult to estimate how many physicians have or contribute to blogs, it is likely a significant number. As with all technology, however, blogs are tools, and any person contributing to one should carefully evaluate how and why it is being used and whether it is appropriate to do so in light of professional obligations and aspirations.
Professional blogs generally have carefully crafted formats and content that further the mission of the owner while complying with the owner’s professional responsibilities. For example, it is unlikely that any media outlet blog is updated without editorial review to ensure compliance with that outlet’s publishing standards. Similarly, blogs may have a place in the realm of telehealth but should be carefully crafted to further legitimate healthcare goals and comply with physicians’ professional responsibilities.
For example, the American Psychiatric Association (APA) clearly considers public education to be an important healthcare mission, and uses a blog as one tool to achieve that goal.[4] However, it is equally clear from various ethics opinions5 that laudable goals are not enough to make up for inappropriate methods of achieving them—or to use a cliché, that the ends do not justify the means. As an example, the Journal of General Internal Medicine study found three blogs that posted photos of patients. Informed consent for such photos is a very difficult and contentious issue.[5] Without fully informed consent, such a breach of confidentiality and trust in the therapeutic alliance cannot be justified by a desire to provide public education.
The study report also gave examples of other postings on blogs written by healthcare professionals that were decidedly less than professional. One doctor wrote on his blog of a patient that “she was a stupid, lazy, selfish woman all of which characteristics are personal problems, not medical issues or barriers to care.”
The risk management advice below addresses in more detail concerns about confidentiality, boundaries, inadvertent establishment of treatment relationships, public forum implications, physician anonymity, and advertising issues.
Confidentiality issues
Patient information must be kept confidential. There is more to de-identifying information than deleting a name. One study published in the Journal of General Internal Medicine1 reviewed 271 medical blogs, and found that 45 provided sufficient information for patients to identify their doctors or themselves.
Consequences for breaches of confidentiality could include, but are not limited to, one or more of the following: discipline by the applicable licensing board, a civil lawsuit, and governmental enforcement action [such as by Office for Civil Rights (OCR), the federal agency responsible for enforcing The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule].
Psychiatrists would be wise to avoid commenting about cases, lawsuits, or administrative actions in which they are involved. Doing so can compromise the defense and make an otherwise winnable case completely indefensible.
Also noteworthy is the APA’s Opinions of the Ethics Committee on the Principles of Medical Ethics, section 4-B: discussing publication of a casebook and disguising of identity. Although the opinion presents obtaining the patient’s informed consent to publication as one possible option, the nature of the psychiatrist-patient relationship may place undue pressure on the patient to agree to the psychiatrist’s request.
Boundary issues
Whether a blog is intended to be personal or professional, another consideration is potential boundary issues. For example, how much self disclosure is present? Is that level of self disclosure appropriate for all patients? Remembering that anonymity is rarely absolute, physicians should assume that even anonymous, personal blogs will be discovered by intrepid patients proficient in the use of search technologies.
Treatment relationships
Publishing general educational information about a disease or treatment usually is not viewed legally as being “medical advice.” However, making suggestions to a person about what his or her specific diagnosis is or treatment should be almost always is considered to be “medical advice” and may establish a treatment relationship. It is important to stay mindful that it is the perception of the reader that matters, not the intention of the physician. Accordingly, care should be taken to clarify that no treatment relationship exists by not posting anything that could be perceived to be treatment advice, and by clearly stating that nothing on the site is intended to be medical advice.
Public forum implications
Even if a blog features only that material created by the host, it is still a public forum and the hosting psychiatrist is responsible for the content. If the intent is to present a fictional story, that should be clear to the readers. American Medical Association (AMA) Ethics Opinion 5.027 states, “Physicians responsible for the health-related content of an online site should ensure that the information is accurate, timely, reliable, and scientifically sound, and includes appropriate scientific references.”
If others are allowed to contribute to the blog, it is advisable to review all writings before they appear to ensure that they are not misleading and do not violate any of the physician’s ethical or legal obligations. For example, even nonphysician contributors should not be allowed to publish patient information on a physician’s blog.
AMA Ethics Opinion 5.027 also discusses conflicts of interest. Generally, any potential conflicts should be disclosed. Refer to the opinion for more information.
Physician anonymity
It is not safe to assume anonymity, even if steps have been taken to disguise a blogger’s identity. Because blogs are accessible to such a large population, the ways in which actual identity may be discovered increase exponentially, and the amount of detail required for someone to uncover one’s identity accordingly decreases exponentially. In any case, anonymity is no justification for breaching professional ethics.
Advertising
AMA Ethics Opinion E-5.02 avers there is no restriction on advertising by physicians except those [restrictions] that can be specifically justified to protect the public from deceptive practices. For example, while patients or others may want to post testimonials about the care they received, their experience may not represent the average result and could be considered misleading. Again, all material should be carefully reviewed and edited before publication. Also of consequence is the fact that physicians may not be able to control which pop-up ads appear. Physicians may want to consider this when choosing hosting venues.
There is nothing inherently wrong with a physician having or contributing to a blog; however, physicians should assume that everything written in a blog will be found by patients, employers, employees, and an opposing side in an administrative or legal action. Physicians should carefully consider the goal of the blog and whether they can contribute content in a manner that comports with their professional responsibilities.
References
1. Lagu T, Kaufman EJ, Asch DA, Armstrong K. Content of weblogs written by health professionals. J Gen Intern Med. 2008;23(10):1642–1646.
2. For example, Ben & Jerry’s blog. www.benjerry.fr/blog/ or AMD’s blogs at http://blogs.amd.com/ Accessed July 2, 2010.
3 For example, CNN’s Anderson Cooper 360 blog at http://ac360.blogs.cnn.com/ or Reuters’ blogs at http://blogs.reuters.com/us/ Accessed July 2, 2010).
4. HealthyMinds blog http://apahealthyminds.blogspot.com/ Accessed July 2, 2010.
5. See for example APA’s Opinions on the Principles of Medical Ethics A.2.e., D.4.b. and Q.4.a.
Suggested Reading
1. Federation of State Medical Boards’ Model Guidelines for the Appropriate Use of the Internet in Medical Practice. http://www.fsmb.org/
pdf/2002_grpol_Use_of_Internet.pdf. Accessed July 2, 2010.
2. Healthcare Blogger Code of Ethics, http://medbloggercode.com/the-code. Accessed July 2, 2010.
3. Health on the Net Foundation’s HON Code, http://www.hon.ch/HON
code/Pro/Conduct.html. Accessed July 2, 2010
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