Electronic Communication and Social Networking in Home Care: Managing the Risk

© 2011 Dickie, McCamey & Chilcote, P.C.All rights reserved.

Confidential Attorney/Client Work Product.

Electronic Communication and Social Networking in Home Care: Managing the Risk

Pennsylvania Homecare Association

May 19, 2011

Electronic Communication

We live in an age where written and video communication can be instantaneous.

Whether in the form of emails, texts or live video messaging, a provider’s employees and patients can instantly communicate their thoughts and observances.

Electronic Communication

As writings or photographic images, such communications have the potential for widespread distribution and long life.

What is written today in an email, may be preserved and disseminated beyond intentions.

Accordingly, the ease and permanency of electronic communication presents numerous challenges to those who seek to manage risk.

The Impact

Social Networking websites and instant messaging provide patients and their caregivers with an opportunity to share information and stay connected.

In this respect, electronic communication presents great opportunities for individuals to become engaged and to avoid isolation.

On the other hand, because the communications can be casual and/or one-sided (as if made during private conversation), the risk of inaccuracy and reputational injury is great.

Impact

In short, social networking and instant messaging present the problems of gossip (reputational injury).

Consider the Domino’s Pizza Fiasco.– Employees videotaped themselves tampering

with food. The images were quickly disseminated via social networks, greatly affecting the reputation of the franchise.

Challenges to Risk Management

In the Home Care context, there are numerous interests that must be protected, including:

– The reputational interests of the provider and its employees

– The privacy and dignity interests of the patients– The interest of providers in fostering an environment

where communications can freely take place towards improving the quality of care (peer review)

Managing the Risk

Attorneys are attuned to the impact of electronic communication and monitor the website activities of parties and witnesses.

In nursing home and home care negligence cases, a Plaintiff’s attorney’s greatest weapon is the facility’s current or former employees.

In virtually every significant case, defendants should count on discovery requests, and perhaps surreptitious efforts, directed at obtaining and exposing the private and public communications of the facility and its employees.

Recent Rulings

Pennsylvania Courts are now directing parties to make their social media “writings” available for production in the discovery process.

In McMillan v. Hummingbird Speedway, a Jefferson County Court went so far as to order a car-accident claimant to turn over his passwords to his Facebook and MySpace accounts.

Other Courts are following suit, finding no expectation of privacy in social media communications.

What Can Be Done to Address the Risk?

Set the standard (by creating and enforcing sensible policies), educate and foster accountability.

Employee Communication

The Truth:

An employer has the right to restrict or even prohibit the use of company equipment for personal use. (This includes computers, phones, blackberries, etc.)

Employees have no expectation of privacy when using company equipment, and an employer has the right to protect its legitimate business interests.

Necessary Policies

Electronic Media Policy. Anti-Harassment Policy (including sexual

harassment). Confidentiality Policy. Social Media Policy. Intellectual Property.

Posting on Social Networks = Broadcasting to the World!

Protect Patient Privacy- Problems with

“friending”- Photographic images

Define unacceptable content The business of the Organization

should not be for public discussion Maintain professionalism

Important Policy Provisions

A statement regarding use of identifying information:

▪ Company name▪ Company logo

▪ Company uniform▪ Work e-mail addresses▪ Clients and vendors

Important Clauses

Inform employees that you may be monitoring personal social networking sites;

Explain the consequences of violating policy;

Establish a point person.

Monitoring

An employer has a right to expect its employees to respect the company and not to make disparaging remarks about it in public.

Certain policies apply outside of the workplace. Most states, including PA, are “at-will.”

Privacy and First Amendment Misconceptions

First Amendment protects individuals from governmental interference;

Does not prevent private companies from monitoring employee’s comments on public sites;

If an employee’s online behavior embarrasses the company, hurts morale or damages the reputation of the company, First Amendment does not protect them;

Employees have no expectation of privacy when they are using company equipment or when using unsecured sites. (The Provider’s policies should expressly communicate this).

The Next Frontier: Resident and Family Communications

Residents and dissatisfied family members may use social networks to criticize the facility and/or attempt to influence decision making.

Example

In Texas, nursing homes must permit the installation of private video and audio monitoring devices, and any tampering can be a criminal offense.

Furthermore, the facility is deemed to have constructive notice of what is on tape, and must report any abuse.

Set the Standard

In the interests of protecting the privacy and dignity of resident’s and employees, the Provider should define the standard of conduct in the admissions or retention process.

Review and amend documents to address the issues presented by electronic communication, with specific reference to:

– Photography– Visitor/Patient conduct– Harassment/Intimidation– Interference with Care

© 2011 Dickie, McCamey & Chilcote, P.C.All rights reserved.

Confidential Attorney/Client Work Product.

Questions?