Physicians should be mindful of how social media can affect a medical malpractice case for better or worse and take steps to avoid legal dangers.
As a case proceeds through the legal process, social media "can be used to take the pulse of the parties, to discover public information that can be used in [cross examinations], and to explore themes for trials," said John E. Hall Jr., an Atlanta-based medical liability defense attorney, at the American Conference Institute’s obstetric malpractice claims forum in Philadelphia.
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Plaintiffs’ and defense attorneys both turn toward social media use by patients and physicians to search for ways to build their respective cases. For the defense, this could mean reviewing a patient’s Facebook or Twitter account for information that contradicts their alleged injury claim. For instance, a patient who alleges a serious leg injury may be posting pictures of recent running activities.
On the other hand, plaintiffs may search social media for evidence about physicians’ activities around the time the alleged malpractice occurred. For example, by arguing a doctor’s late-night posts suggest the doctor had little sleep and was less than attentive during the patient’s visit, said Adam J. Davis, a Cleveland-based medical liability defense attorney. He was a copresenter at the obstetric claims conference.
"The courts are viewing electronically stored information, such as Facebook profiles, no differently than a person’s photo album at home or a journal that relates to the care in question, all of which have been discoverable in litigation," Mr. Davis said in an interview. Judges "are treating electronically stored information in much the same way they treat real, [tangible] evidence. Once that information is out there in a public forum, it’s fair game."
To prevent social media postings from being used against them in court, physicians should considering making their personal accounts private, Mr. Davis said. They should also be wary about what information they are posting or forwarding on public websites or on their practice’s social media accounts.
Deleting or changing a social media posting because it may arise during a malpractice case is a bad idea. Data residing in social media sites is subject to the same "duty to preserve" as other types of electronically stored information, Mr. Davis said. The duty to preserve is triggered when a party reasonably foresees the information may be relevant to issues in litigation. Deleting Facebook posts or other social media texts could result in sanctions for physicians or a spoliation of evidence claim.
Mr. Adam J. Davis
If physicians believe a medical malpractice lawsuit may be forthcoming, it might be helpful to monitor the social media landscape and review what is being said about their care or practices, legal experts add. Physicians can search mainstream media, blogger websites, online reviews or tweets for their names or facilities. Such information could help them be more prepared if a suit is filed and help them direct their attorneys to relevant online comments.
"Monitoring [social media] pre-, during, and post trial can give a variety of information from the opinion of the case in the community, the predispositions witnesses may have, and compliance with court directives and rules," Mr. Hall said in an interview.
However, doctors should leave to attorneys the searching of jurors on social media, especially during trial. Contacting jurors during trial – even accidently – can lead to serious legal consequences for physicians, such as a mistrial.
"The best practice is for doctors not to be checking on jurors during trial – leave that to counsel," Mr. Davis said. "It’s too risky for the physician. A physician’s inadvertent communication with a juror over social media – say they accidently send a friend request – that’s considered communication, and it could result in a mistrial or the [excusing] of the juror or the start a new trial."
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