In the past few years, my Firm has handled an increasing number of cases with the Texas Board of Nursing involving social media websites and the disclosure of confidential patient information. This can be a confusing topic as there is considerable gray area as to what constitutes the impermissible release of patient information and what is an appropriate communication by a nurse in a public forum.
Every nurse is aware of the duty to safeguard patients’ identities and confidential health information. Maintaining this confidentiality is a requirement under both federal and state health care privacy laws as well as one of the Texas Nursing Board’s minimum standard of nursing practice. In most circumstances, nurses are well aware of how to protect patient confidentiality and are knowledgeable of the procedure to follow when it appears as though a privacy breach has occurred. The growing prevalence and usage of social media and smart phones, however, has significantly increased opportunities for the improper release of confidential information and the resulting receipt of a Board complaint.
A greater awareness of this problem has led the Texas Board to directly address this issue in both its October 2011 and April 2012 quarterly newsletters. In these articles Board Staff outline several representative scenarios involving the improper disclosure of patient information and discuss what went wrong. While limited in content, these articles are helpful in that they provide some indication of the Board’s approach to this issue and general guidance on what is considered to cross the line.
A common thread through the Board’s examples is the limited control a nurse can exercise over communications posted on the internet or sent via social media. As an example, one of the scenarios discussed in the Texas Board of Nursing’s April 2012 quarterly newsletter involves a nurse who posted in the comment section of her local newspaper’s website. Although the content of the post did not identify the patient in any way, the Board’s concern was that someone familiar with the nurse or patient’s family could infer the patient’s identity. To the Board’s credit, the article states that this nurse was only issued a warning letter informing her that any future improper disclosures could result in disciplinary action.
As seen in the above example, the posting of even veiled statements about a patient that do not disclose the patient’s identify can be problematic. This is because a posting on a public website can be viewed by potentially anyone. While the same statement to one person may be sufficiently disguised to prevent a confidentiality breach, another individual may have sufficient outside knowledge to guess the patient’s identity and thereby be exposed to protected health information. In contrast to a one-on-one verbal exchange, a nurse who writes about work on Facebook, an online messaging board, or even in an email, has little control on who will subsequently view it. Additionally, the nature of online communications is that they will often remain in place indefinitely.
If a nurse has disclosed confidential patient information, the Texas Board of Nursing will take into account factors such as whether it was intentional or not, the nature of the information disclosed, how it was disclosed, and what sort of remedial measures taken by the nurse to correct it. Cases where the statement at issue has been carefully obscured by the nurse in order to protect the patient’s identity can often be dismissed if handled appropriately by an attorney. As stated above there is always substantial gray area where it is not clear what constitutes an improper disclosure.
In the ongoing debate on patient confidentiality and social media, it is imperative to remember that nurses should retain the ability to discuss cases amongst themselves as this is an important source of learning through shared experience as well as a way to blow off steam in what is a difficult profession. A nurse must keep in mind to do so in an appropriate manner, however, and to avoid online discussions, even in a nurses only forum, due to the lack of control over who may ultimately view the communication. The bottom-line is that the Texas Board of Nursing’s general approach in this area is highly conservation and Staff frequently pursue cases against what to an independent observer would not constitute an improper disclosure.
Any nurse who is already facing an investigation by the Texas Board of Nursing for the disclosure of confidential patient information should contact an attorney. It has been the experience of the attorneys at the Leichter Law Firm that early intervention by a seasoned nursing board lawyer can substantially impact the ultimate outcome with the Texas Board of Nursing.