Be careful of promises over the internet

Internet Do’s and Don’ts

Today’s connected world provides significant opportunities for practice marketing and prospective patient interactions. It has greatly expanded the markets and marketing reach of plastic surgery practices, and has significantly reduced the costs of being visible to such large markets and potential patient populations. But there is also a flip side to the ready availability of medical and marketing information, and the internet can present legal landmines to a plastic surgery practice.

Interactions with prospective patients on the internet

The internet has dramatically influenced the practice of plastic surgery. Patients turn to the internet for information about procedures, for referrals and recommendations by other patients, to compare pricing (where available) and to research the background, experience and complaints about medical practitioners. In turn, plastic surgeons in particular market and promote their practices on the internet and social media websites, as that is a lucrative avenue for interacting with prospective patients. Cosmetic surgery is primarily a cash business, and new patients are essential to the success of a plastic surgery practice.

All of these internet activities bring with them significant risks. When contacted via email, your office must be careful not to make any specific promise or recommendation that a patient might rely upon. Not only can such responses create liability under warranty law principles, but if the prospective patient is out of state, you may be sanctioned for unlawful practice of medicine in a state without having a medical license, which is not only the basis of disciplinary actions, but is also a crime. This prohibition only applies to prospective patients with whom you have not yet entered into a doctor–patient relationship. Nonetheless, it is important to monitor such interactions with prospective patients, and to develop generic answers concerning basic information in response to the most common inquiries.

You should also have a prominent disclaimer on your website and contact page, including the direction to contact a local health care provider if your symptoms require immediate medical attention or if your condition is getting worse after receiving a medical procedure from a health care provider. You might also consider keeping a log of such communications and making them part of the patient’s medical record in the event that a prospective client becomes a patient of the practice.

Social media networking, blogging and reviews of your practice

Many practices have a strong presence on social network sites, and frequently have a staff member assigned to post on blogs and provide updates to the availability of new procedures and cosmetic products. In disseminating such information, HIPAA rules still apply, and your practice must be vigilant not to reveal any confidential patient information on such websites while providing information about your office practice and experience. It is of course permissible to describe procedures in a generic way, and to include information about patient safety issues, general patient instructions, and current trends of plastic surgery.

The practice must maintain a high level of professionalism complying with the HIPAA and other privacy issues. The use of photographs for commercial education and internet website usage require specific written consent from your patients acknowledging the intended use of their photographs, and all care should be taken to avoid any photo or information which could identify the patient. Your practice should also employ the same consent procedures for office photographs, books, and references compiled for marketing purposes and displayed to other patients.

Along with your use of the internet and social media to market your practice comes the reviews of your practice and descriptions of their experience by current or former patients of your practice. In some instances, dissatisfied patients may post negative information about your practice or their results. Even though such posts may not be accurate, physicians are generally prohibited from responding, because HIPAA rules preclude you from disclosing private patient information. Unless you have a specific authorization from your patient, you have limited options to protect your reputation and your practice.

Some physicians have attempted to counter such posts through copyright claims and other legal actions, but opinions are generally not actionable in defamation actions, and the majority of ethics opinions consider such an approach unethical and bad practice. It also calls attention to the very information you seek to suppress. Your office might develop blog posts reminding patients and the public of the importance of complying with post-operative care instructions, of respecting the limitations on returning to normal activities, and of the risk of complications, particularly with regard to high risk procedures.

There are also internet companies that will work to clean up your online reputation by, among other things, promoting positive reviews of your practice and pushing negative information to less prominent pages on search engine results, where prospective patients are less likely to see them.

Other online misconduct may, however, be subject to legal action by you. This includes a hacker, disgruntled patient, or competitor who creates a fake website to divert internet traffic or to make claims about your practice that are untrue or misleading. Legal liability attaches to such conduct through trade libel (by causing confusion to the average consumer) or through a suit for unfair competition if the attack is made by a competitor.

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