Transcript Electronic Communication - Pennsylvania Homecare Association

Electronic Communication and
Social Networking in Home Care:
Managing the Risk
Pennsylvania Homecare Association
May 19, 2011
© 2011 Dickie, McCamey & Chilcote, P.C.
All rights reserved.
Confidential Attorney/Client Work Product.
Electronic Communication
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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
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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
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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
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In short, social networking and instant messaging
present the problems of gossip (reputational
injury).
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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:
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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
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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
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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
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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
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Electronic Media Policy.
Anti-Harassment Policy (including sexual
harassment).
Confidentiality Policy.
Social Media Policy.
Intellectual Property.
Posting on Social Networks = Broadcasting to
the World!
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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
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A statement regarding use of identifying
information:
▪ Company name
▪ Company logo
▪ Company uniform
▪ Work e-mail addresses
▪ Clients and vendors
Important Clauses
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Inform employees that you may be
monitoring personal social networking
sites;
Explain the consequences of violating
policy;
Establish a point person.
Monitoring
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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
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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
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Residents and
dissatisfied family
members may use social
networks to criticize the
facility and/or attempt
to influence decision
making.
Example
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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
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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:
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Photography
Visitor/Patient conduct
Harassment/Intimidation
Interference with Care
Questions?
© 2011 Dickie, McCamey & Chilcote, P.C.
All rights reserved.
Confidential Attorney/Client Work Product.