Medical Blogs May Open Doors to Patient Privacy Violations

As use of the Internet as a communications tool continues to grow, and more and more physicians adapt to that growth via the posting of medical blogs, the door may be opening to increased violations of patient privacy and medical malpractice issues. According to a recent study published in the Journal of General Internal Medicine (Vol. 23, No. 10), nearly 57% of medical blogs included sufficient information, either in text or photos, to reveal the author’s identity.

“I think this is going to become a growing issue as more people turn to the Internet and blogging,” says Scott McBride, partner with Baker Hostetler. “When people blog or send e-mail over the Internet, they’re not as cautious or guarded as they might otherwise be if they took the time to write with pen and paper. It’s a casualness and openness in how they approach it.”

And that casualness could lead to problems.

It’s too easy

Andrew Serwin, a partner with Foley & Lardner LLP, says that physicians have always shared case information with their peers as a way to gain better insight into treating various medical conditions. The problem today, however, is the ease that the Internet provides for disseminating information. And once the information is out there, it’s gone.

“If you post a blog, many times, for immunity reasons, the blogs will have a policy of not pulling things down, so even the author themselves can’t remove it,” says Serwin. “And the wider dissemination of high speed Internet is a factor because you can do more. Society has to adjust to these new forms of communication and their impact.”

But thus far, says Peter Mancino, a partner with Garfunkel, Wild & Travis, P.C. (www.gwtlaw.com), that adjustment hasn’t happened. “People view what they put in e-mail very differently from what they would put in a written letter. They tend to be more relaxed [about e-mail content], and that’s not really appropriate. The same rules regarding research and use of patient information apply to both.”

Like a journal

Mancino says that, in his mind, medical blog content should be treated the same as it would be if it were published in a print or online magazine. Most doctors would never think of publishing a photo of a patient in a professional journal without getting their approval, and a blog shouldn’t be treated any differently—especially if it’s going to be accessed by the general public. Not only do the same do’s and don’ts apply with regard to content, but with whom the information is being shared is also an important factor.

“When we counsel [physician] clients who are setting up websites and information exchanges, we tell them that they have to have disclaimers on what the information can be used for, and what it can’t be used for,” explains Mancino. Commonly, disclaimers will indicate that the information on the site does not constitute medical advice. “That’s very important, especially if you think patients or people who have the same medical problem you’re talking about will be accessing the site.”

Hospitals, also, have a vested interest. McBride explains that hospitals might not want to see their patients discussed on the Internet by doctors. Depending on whether the doctor is employed or contracted by the hospital, patients could involve the hospital in any potential litigation. “It’s not good public relations,” says McBride. “And doctors could end up having their staff privileges impacted if something done on the Internet breaches patient confidentiality.”