A former nurse is seeking more than $15 million from a Texas hospital, alleging she was fired for complaining that hospital employees, including doctors, took photos of sedated patients and posted the pictures on Facebook. Although this case may seem unique, such voyeuristic use of social media in healthcare settings is likely to be the source of a ballooning area of retaliation claims and wrongful dismissal suits.

In a similar Texas case, Westlake Surgical, L.P. v. Turner, a registered nurse brought suit against the hospital that terminated her employment, alleging that she was retaliated against for reporting HIPAA violations. As evidence in support of her claims, the nurse imaged hospital documents onto a media device. The court found for the nurse and ignored the employer’s contention that her use of social media to gather evidence was a HIPAA violation. In deciding the case, the court reminded the employer that a covered entity does not violate HIPAA when an employee in good faith discloses PHI (protected health information) for purposes of reporting allegedly unlawful conduct in connection with the delivery of health care.

Another example of how social media uniquely affects health care settings is a California case in which, instead of treating a 60-year-old stabbing victim after his arrival at an emergency room, nurses and other staff took photos of the dying man and posted them on Facebook. The breach of patient privacy led to the firing of four staff members; another three were disciplined. Nurses and staff posted a photograph of the dying man on their public Facebook accounts for approximately two days before coworkers reported the breach of privacy to hospital officials. An employee who saw the photo and Facebook posts reported that hospital staff also circulated the photo attached to text messages. 

While the Video Voyeurism Prevention Act of 2004 applies only on federal property, several states, including Florida, Iowa and South Dakota, have adopted, or are in the process of adopting, similar legislation. This legislation generally seeks to protect individuals who are unable to defend their own reasonable expectations of privacy during their weakest moments. In addition, the legislation may serve to  protect hospital staff willing to report the posting of patient photos and videos on social media sites in order to assist their employers in self-monitoring for HIPAA violations. 

Even if the federal government and each state were to enact legislation to restrict social media use in hospital settings,  an employer’s ethics policies and code of conduct need to address the underlying behavior.  The issue is clearly a difficult one for the courts to tackle.

In a recent case, five female nursing students posed for cell-phone pictures with a placenta while they were in a clinical course and posted the photos on Facebook.  They were dismissed from nursing school the next day for unprofessional behavior. A U.S. District Court Judge held that they were improperly dismissed from school.  In reaching this conclusion, the judge held that photos are taken to be viewed and if the students were given permission to photograph the placenta, it was irrelevant what they did with the pictures. There was no violation of any patient’s privacy because there was nothing in the photos to identify whose placenta it was. The judge acknowledged that the Facebook element of the case mystified him, but he said: “today’s generation of students is today’s generation of students and I don’t know that what they did was disruptive. I think the college’s reaction was disruptive.”

A missed lesson in ethics perhaps; however, the greater lesson is that employers need to review their social media policies and adjust them to their cultures and regulatory environments and enhance their training on the acceptable use of social media.  A few considerations include:

• Should all camera-enabled and/or media storage devices be banned from health care facilities to prevent HIPAA violations, or are they useful when used to show HIPAA violations by the facility itself?
• Should training on social media policies also include an ethics component?
• Should employers engage peer focus groups to discuss what potential social media uses may arise that the employer may not have even considered?