Rory Bellina (00:15):
Hello everyone and welcome to Health Law Talk, presented by Chehardy Sherman Williams. Before we get started, please be sure to subscribe to our podcast and follow us on Facebook, Twitter, LinkedIn, and YouTube – links in the description below. We hope you enjoy this episode.

Conrad Meyer (00:33):
Hey, good morning everyone. Chehardy Sherman Williams here in the studio, Conrad Meyer and Roy Bellina. Good

Rory Bellina (00:41):
Morning everyone.

Conrad Meyer (00:42):
How you doing, Roy?

Rory Bellina (00:43):
Doing well. Happy Friday.

Conrad Meyer (00:45):
Happy. Well, yes, if you’re listening to this, we are on a Friday because we usually try to record on Friday mornings.

Rory Bellina (00:50):
Right, right. And release it the following week,

Conrad Meyer (00:52):
So. That’s right. That’s right. So it is a good Friday morning here in the sea. not the cbd, but the New Orleans and mere Louisiana overlooking the lake, the foggy lake. So I’m happy to be

Rory Bellina (01:03):
Here. Me too, me too. Interesting topic

Conrad Meyer (01:05):
Today. Very interesting. one that you and I have talked about and I think is very prevalent today, social media and specifically social media and healthcare. the risks, the benefits some of the pitfalls that, that I think healthcare providers or even entities, companies face when engaging the public through social media outlets.

Rory Bellina (01:29):
Yep. Yeah, I think that like everyone is aware of social media, the, the benefits of it, the pros and cons, but when you bring it into the, the healthcare industry, there’s a lot more things that practices need to consider, issues that they’ll face. Obviously there’s benefits to it, but there could be some hurdles or things that they, that they trip over. And so we’re here to talk about those today.

Conrad Meyer (01:49):
and today, I mean, you have to have it right? I mean, if you’re, if you’re a provider a practice, if you’re an entity, a hospital doesn’t matter. Sure. I mean, to to, to engage today, you, you have to have some sort of social media

Rory Bellina (02:02):
And, and I think everyone is pretty much accustomed to that now for, I wanna say almost every industry where if you get a referral or recommendation, whether it be for a roofer or somewhere to get your car repaired, or, Hey, my back hurts, who do you, who do y’all recommend? I see, Oh, they’re gonna say, Let’s go see Dr. Conrad. Well, the first thing someone’s probably gonna do is they’re gonna Google you and they’re gonna see, you know, where is he? Right? Where did he go to school? Does he have any reviews? are there any pictures of him? You know, and all that is there, social media pages and all of that kind of lends into the decision you’re gonna make. I mean, for me personally, if I could find information on someone, and I see, okay, they, they look relatable, they’ve got good reviews that, you know, they have a, a website presence, I’m more likely to choose that person compared to someone who has nothing. And I don’t know anything about them until they, they walk into the exam room

Conrad Meyer (02:53):
And, and, and you make good points. So we’re gonna talk about that a little bit about reviews and having that and, you know, what’s a review and how is it really a review? Is it just, you know, somebody, a paid actor or is it a ghost review? Or is it truly someone who actually saw the, the doctor, for example, and made an accurate review of, of the professional medical services that provider rendered. Right. And so all those things are very important. I mean, and, and today, I mean, Roy, how much, I mean, how many social media outlets do we have? I mean, you know, Facebook, what, YouTube? Yep. What we got what

Rory Bellina (03:28):
LinkedIn? LinkedIn’s a big one. Know, there’s some just for the medical profession, you know, Twitter,

Conrad Meyer (03:32):
Twitter, I mean, I forgot Twitter.

Rory Bellina (03:33):
Yep. I mean, they’re continuing to grow.

Conrad Meyer (03:36):
Is Instagram a social, a social Yep.

Rory Bellina (03:39):
That’s under the Facebook umbrella umbrella.

Conrad Meyer (03:41):
TikTok, would you consider TikTok a social?

Rory Bellina (03:43):
There’s a lot of providers on TikTok. I know.

Conrad Meyer (03:46):
Really? Yep. Okay. And I did not know that. I’m

Rory Bellina (03:48):
Yep. They’re on there. Wow. There’s new, new, new social media avenues being invented all the time. And I think it’s important for our providers and clients to consider, you know, should they be on it? Should they not be on it? You know, it, Where do you cross the line between promoting your business and showing that you’re relatable and in the 21st century verse, Okay, this is, this is too much and, and we need to pull it back

Conrad Meyer (04:12):
In and, and see, this is such a big topic. Sure. It’s a big topic because it’s a big choice and, and a decision for for a provider or an entity or a facility to, to, or a system Right. To jump into the, into the social media fray. Right. So we’re gonna break this, this whole podcast up into, and maybe in maybe a couple of parts. Sure. you know, so, so we’ll talk about that as in, in some future parts about how we break this down. And

Rory Bellina (04:38):
I think that’s a good way to start it, because I’ll get calls and I’m sure you do as well just the kind of generic one. Or someone will call me and say, Look, you know, XYZ a practice. We have a website with our, you know, you know who the doctors are, what the office looks like, contact information, insur insurance, we take that kind of thing. But, you know, should we get a Facebook page? Should we post pictures on Instagram? So, you know, those initial questions that, that I receive kind of starts the conversation with decline or the practice on, you know, all right, let’s talk about this. Let’s, let’s talk about it. What kind of practice you are, what kind of patients you’re seeing, You know what, And then once they make the decision, Okay, we’re gonna do this. Well, who’s gonna have control over it?

(05:20):
Is there gonna be some sort of sign off where you have a medical director or someone in charge of your social media, making sure you’re not getting the face of a patient in the background, then consent to being on these pages? I mean, there’s, there’s so many things that, that kind of go into this. It’s really important for practices if they haven’t already, to kind of make a really good outline on a policy when they get started. You know, here’s the app, here’s the social media networks we’re gonna be on, and, and how we’re gonna proceed, proceed with that. So what are some of the, you know, let’s say we get the, the walk through the example of a practice that wants to have a Facebook or an Instagram page, Instagram’s predominantly pictures. Facebook is obviously pictures and, and text. You know, what’s something that you typically tell people when they, when they start off on kind of the, the big do’s and don’ts of posting things online to the general public where you don’t have a true provider patient relationship?

Conrad Meyer (06:15):
Well, I guess the, the first thing that we’re thinking about, what, what are the benefits? Right? Right. What, what are the benefits? What, what are you trying to get out to patients, to the public at large? What are you trying to do? So we, there’s so many things that you can do from just general networking. Right?

Rory Bellina (06:30):
Right. And I think that’s what it is. It’s networking. I think it’s,

Conrad Meyer (06:32):
Well, it is, it is networking, but it could be more, a lot more than that too. Education, right? You can educate patients on certain procedures, certain diseases, certain, like for Covid even, right? Sure. I mean, how many, how many websites have you walked and seen covid on every healthcare website,

Rory Bellina (06:46):
Right? Or I think patients like to see, Oh, this is what, this is what this procedure looks like. Or here’s, here’s a doctor doing a 32nd video on, you know, explaining this. I think there’s, you’re right. I think that’s a good question to ask. What are gonna be the benefits? What do you plan to use this

Conrad Meyer (07:01):
For? And, and I think in addition, I mean, I think every organization or every provider wants to promote themselves. Correct. They all want to get out there and they want to get penetration in the market to, and, and one of the ways today, like you correctly mentioned is digital presence, right? So that can deal about how they handle patient care, right? That could be patient education on certain things. It could be public health programs, it could be a lot of different things. and so that was, I, I would frame the question as what do you want to do, like in your, when your vision, right, with, within the mission and vision of your, of your company, your entity, what is it that you want to do? And start the ball rolling

Rory Bellina (07:38):
There. Yeah. And, and I think most the, the most popular answer that I’ve received, or that, you know, you would hear is that people wanna show patients and, and promote their business, you know, what Right. What their clinic looks like, what the, the operating room looks like, or kind of, you know, here’s a little snippet of what this procedure looks like. So I think it’s, it’s education and honestly, I think a lot of them are gonna say, Oh, well, my competitor ABC is doing this, and I want to do it too. Yeah. And so that’s when we go into the aspect of, of, Alright, well, let’s look at that and let’s see, you know, are they doing it correctly? Should they be doing it If they, you know, if they shouldn’t be, we’ll tell you what you, what you should do or shouldn’t do. And, and go from there. Well,

Conrad Meyer (08:17):
You just don’t want to fly off, you know, just do some sort of knee-jerk reaction and have someone in your organization just throw up a Facebook page or Twitter account. I think it needs to be a directed, calculated formal approach, right. So that everyone in the organization knows what’s going on. This is where the policy comes

Rory Bellina (08:34):
In. And having someone really in charge to kind of review everything before you hit publish or

Conrad Meyer (08:39):
Before you. And that’s a great, that’s a great idea. I mean, the a point person that’s in charge, maybe it’s a marketing person or someone else that’s in charge of those accounts so that you don’t have, you know mm-hmm. Sweet Sue nurse, or, you know, Dr. John Smith, or whoever administrator John Doe. Right. Just, you know, haphazardly getting on the Facebook site and just posting something willy-nilly.

Rory Bellina (08:59):
And that kind of lends to typically where the, the conversation goes next when we say, Okay, we’re gonna do this. You’re gonna make a Facebook or an Instagram page for your practice. Now we need to talk about PHI and what you can and can’t post. And it’s very important that whoever’s in charge knows the difference between, you know, what’s protected information, what’s not true. And I think that true. And, and I think that is something where you have to go into examples and, and discuss, Okay, you know, are we gonna get patient consents to be posted? And, and, you know, being very careful when you take a picture is a medical record in the background, is the, is a, is the computer screen readable in the background? Are are there patient files on the shelf that you could see? Those are some things that you don’t think about.

(09:42):
But, but I think we all know this. There’s, there’s people online that will not hesitate if they see a picture on Instagram of you let, let, let’s say an example of a doctor sitting behind his desk in his office and he’s explaining what a knee scope procedure entails. Someone might take that picture and, you know, zoom in as much as possible and see, Oh, look, there’s Roy Bellina. He must be a patient over there. Well, technically that’s a reach right there, because no one knew that I was a patient of this doctor, but he posted a picture of my medical record, or at least the outside of it on social media without my permission.

Conrad Meyer (10:17):
True. And, and, and let me tell you something, you’d be amazed, you’d be amazed at the amount of people in healthcare Sure. Even that, that really don’t follow, I would think not only HIPAA guidelines, but it’s common sense. Right. Right. You know, and I’ll give you an example. I mean, years ago, this is years ago but there were some nurses that were, you know brought up for photographing pictures mm-hmm. of patients in the er

Rory Bellina (10:44):
I think I do remember this, when they were

Conrad Meyer (10:45):
Unconscious, they were unconscious mm-hmm. . And it was on the news. Yep. It was all over the news. And you think to yourself, you know, how in the world could someone do that? Right? Like, if you’re a nurse and this patient is in this most him and his, his or her most vulnerable state. Right. And they posted the picture of someone and then arguably made fun of that person. Right. you almost like that be that goes beyond all common sense. But the sad thing is it happens. Yeah. Yep. It happens. And it happens a lot more along those lines. People just do it because they’re, they think it’s funny. It does. They don’t, they don’t realize the consequences. I can tell you right now I know the nursing board got involved. None. I, I, I can’t imagine any of those nurses would be laughing when the board got

Rory Bellina (11:28):
Involved. Right. No, and I think that that’s another kind of pivot to this, Right. We talked about a practice starting and having social media pages, but I think it’s also important for practices to have a policy in place for their employees when they’re on site. You know, are you going to allow your, your nursing staff or your administrative staff to make a TikTok while they’re at the office? Or,

Conrad Meyer (11:51):
And that could be in the form of a mobile p mobile phone policy.

Rory Bellina (11:53):
Yeah. And I think those are very important because like you said, the, the person, the, the, it could be whoever it may be, but that person could take a photo or make a video not really realize what’s going on. And in the background is the huge metal filing cabinets of all the patient records or their computer screens unlocked and there’s a, there’s a medical note popped up. Right. And those are things that you don’t think about, but someone’s gonna freeze that video and be curious and zoom in and say, Oh, look, Roy Bellina was in there today for this test. Right. Or this exam, or, or whatever it may be. And post that online or, or, you know, say, Hey, look, Roy, you, your, your information’s in the background on this and tagged me in the picture. Something like that.

Conrad Meyer (12:36):
So, and I agree with that. So that, that, that comes to the next point of formulating sort of your practices and the facilities social media policy and what that entails. not just the site, Right? Right. But your mobile phone policy, maybe your iPad or laptop, whatever computer you’re using policy Sure. Right. Within your group practice, your solo practice, your entity, your facility, whatever it is. Sure. That, that needs to be in consideration so that you don’t have those kinds of issues and you, and you’re not gonna have someone raise their hand and say, Well, I just didn’t know.

Rory Bellina (13:06):
Right. Right. And I think the big thing is, is having controls limiting who was allowed to post on behalf of the practice or the entity, you know, really, really having controls on that to make sure that it, it’s not your,

Conrad Meyer (13:19):
Your response, you’re not so, so if someone responds to something on a post, Right. There’s gotta be who responds to that, that, that comment or that issue if the response is

Rory Bellina (13:28):
Required. And I think that’s another topic that we should definitely discuss, is let’s talk about responses and online reviews, because I know that I’ve received phone calls, and I’m sure you have as well. And it’s, it’s, it’s, it’s tough. But you, you get a phone call from a practice saying, Hey I’ve got this patient Con Meyer who just left a nasty Google Review. One star for me said, I did a terrible job on this knee scope of his, and it’s bringing down my Google ratings, and it’s right at the top now. And other people are commenting about it. And I think I did a great job. And it, the, my notes are completely contradicting what he’s saying. I want to go defend myself. I wanna post pictures of the X-ray show. And it was a perfect scope. And, and I want to respond back to this. You know, what do you tell that provider?

Conrad Meyer (14:12):
Well, the first, the first question is, is, you know, take a breath. You know’s. Absolutely. Let’s see. I know this is disparaging. I get it. I understand your problem. the first thing we wanna look at is the post that was put on whatever, review health grades, Google, does it matter, Facebook, Twitter? Is it factually accurate? Right. You know, because then we’re talking about defamation, Right. And we’re talking about, you know, because if you’re gonna pursue this, then we need to show that this is a defamatory statement. Right? Right. And and so that’s, that’s the first thing.

Rory Bellina (14:46):
And let’s say it’s a gray post. Let’s, for, for this conversation, let’s just say it says you know, Dr. Conrad, or, or, you know, Dr. Soandso has bad bedside manner, or they were rude, and I wouldn’t recommend it to anyone. Kind of something that’s very subjective. You know, how do you, how do you advise someone if they get a very subjective post? That’s,

Conrad Meyer (15:06):
That’s a really good question. And it’s, it’s something that happens a lot.

Rory Bellina (15:08):
I think so too.

Conrad Meyer (15:10):
and the answer is, is my, my first suggestion, if it’s not, if it’s sort of that gray area like you just mentioned, so that this is innocuous post of Sure. The doctor really just was rude to me. Right. And I just don’t like him like an opinion post. Right. you know, the first thing I would say is, have you, have you talked to the patient? Absolutely.

Rory Bellina (15:26):
That I was, I was about to cut you off, because that was gonna be the first thing. The

Conrad Meyer (15:30):
First thing that came

Rory Bellina (15:31):
That I said is, is, first of all, what really happened and have you talked to

Conrad Meyer (15:35):
The patient, reach out to the patient and, and do so in a very professional manner. Because a lot of times, and I, and I, and I teach this to the residents at, you know, here at LSU in Tulane, when I do the med mouse seminar with them. And, and basically the, the largest complaint that I see in professional liability cases, and even to your point on the gray area response of he was rude, is that patients who have bad experiences, normally it’s all about communication or the lack of communication between the provider and the patient. Right?

Rory Bellina (16:08):
Right. And so, you know, there’s that lack of communication. And I think that that’s the part that, like you said, upsets a patient enough to where there, I think the patient’s instant response is, Well, what can I do to get back at this person? Or how can I make an impact? So I’m gonna go post something negative online about them, and there’s kind of no recourse or no repercussions. So, you know, I get that phone call. And, and like you said, the first thing is, you know, what happened and have you talked to the patients? Sometimes a phone call to, Hey, listen, Conrad, I saw that you posted this on Google. I just wanna talk about it. You know, I was really behind that day on notes, or I was preoccupied with this. Just a simple apology. And that might be enough for where they say, you know, Thank you for calling. I’m gonna go take the post down. I’m glad we could work this out. I was just really upset in the moment, and I just kind of fired it away when I was walking to my car from my phone.

Conrad Meyer (16:59):
See, I think, I think patients need to see that from doctors. Absolutely. And they don’t see it enough. I think, I think when you look at the personalities and the education, the time these physicians spend attaining their degree residency fellowships, specialty, I mean, when you look at all that there’s, there’s sometimes a lot of times a disconnect. Sure. And so what I tell the residents

Rory Bellina (17:24):
And they’re under so much pressure, they are to get in and get out and have that patient encounter in six minutes and 13 seconds, or else they’re gonna be behind their whole day and they’re not meeting their numbers.

Conrad Meyer (17:33):
Totally understand that. And I, and I, and I get that the, the is what I tell the residents, and I think it’s a really good thing, is imagine the patient was a family member. Sure. Your mom, your dad, your wife, your spouse, your kids, your grandparent, whatever, whatever. Remember a family member, and if that patient is a family member, what would you want them to know? Mm-hmm.

Rory Bellina (17:57):
,

Conrad Meyer (17:57):
You know,

Rory Bellina (17:58):
Compared

Conrad Meyer (17:59):
To, compared to just somebody who just, you don’t even know. Right. So, so, and then I could tell you, a lot of times they’ll switch back and they’ll say, You know, that, that perspective changes things for me, because I know if it was my family member, I’d spend a lot more time. I would go into a lot more detail, or I’d change, I’d change things. that’s one thing to do. And then the other thing is I tell ’em, just talk on the level. In other words we always hear, you know, legal ease, Right. Don’t be legal ease. Right. Talk to a straight, So when I tell physicians, I say, Look, cut through the medical jargon and talk to ’em straight. Talk to ’em straight. Say here, hey, here’s what’s gonna happen guys. Right. Here’s what’s going on. And so I think when people feel the connection and the building of rapport, Right. Not this, like you mentioned, this sort of drive through healthcare mentality. Sure. Get ’em in, get ’em out quick. You know,

Rory Bellina (18:47):
And I think one thing that I think

Conrad Meyer (18:48):
It helps

Rory Bellina (18:49):
That, that that’s tough for physicians or, you know, various providers, is a lot of times they’re just afraid to apologize. They’re afraid if I say, Look, I had a terrible day, or, or, Look, I messed this up. I should’ve given you, we should have handled it this way. They’re, they’re terrified of Well, that’s of the malpractice

Conrad Meyer (19:05):
Word. Well, that’s, if that’s defensive medicine, they don’t wanna do that. Right. Because then all of a sudden they feel like they’ve opened the door.

Rory Bellina (19:10):
Yeah. And oh, he said, he said he’s sorry, he messed up. And maybe the patient’s recording that in his pocket and is gonna bring that to his attorney, that that puts up this wall between, you know, patients and, and that could lead to some of these, these negative reviews or these

Conrad Meyer (19:24):
Issues. The true. But that, I will tell you this, Louisiana, for example, has the am sorry, law. And, and basically it allows providers to, you know, send either verbally or in writing remorse or humility, you know, and, and if say there was an adverse outcome, they can do that. And that expression of remorse, or I’m sorry, or I apologize, this, this just, this didn’t go the way we planned that confession or apology, whatever you wanna call it. Right. is not admissible in a civil action. Okay. So, so, and I tell ’em that, so that way feel free to do that. Sure. That should cut the tie that you think it’s defensive and you have to protect yourself. Sure. And we’re not the only state that does that. They have many states that have, I’m, I’m sorry sorry. Laws in it. Right. to allow the transparency and let providers make that, that, that, that expression Sure. Of remorse to patients.

Rory Bellina (20:21):
So let’s take another step further. We’ve got a patient who leaves kind of that, that that subjective review of, you know, Dr. Connor isn’t nice to me, or he messed this up, You know, and the doctor really wants to defend himself, you know, and, and we talked about talking to the patient. Right. Talking to the patient didn’t work, or, or that that’s, you know, it’s not a viable option. Sure. For whatever reason it may be. So, you know, what are some options? You know, I definitely don’t want the doctor going on Facebook or social media and saying, you know, No, I did that procedure. Correct. And here’s why he’s wrong, You know, for a myriad of reasons. But, you know, what are some things that, that you’ve seen where you see these online reviews and, and the best practice for kind of responding to them or various social media?

Conrad Meyer (21:02):
Okay. So, and I’ve run across this numerous times. So this is, this is the problem. the first thing you have to look at and , and how many of us have done this, is look at the terms of service, right? And so you go to Facebook, Twitter, and you look at the terms of service, which I mean, how, how often have you actually read Rory and any app, anything we, they have in tos, that long document that comes out. Sure. How, how many times y’all just scroll down and hit agree when you haven’t read this massive legal contract,

Rory Bellina (21:30):
Right. hardly ever.

Conrad Meyer (21:32):
Right? So, Right. Nobody has a clue what that is. So, so in other words, there might be some method in the terms of service that would allow someone to contact a social media company, Right? And say, Look, under the terms of service, this post is not accurate. Right. And it is disparaging, and we’re gonna ask you to remove it. So if the patient doesn’t remove it for whatever reason, maybe there’s something in the terms of service, a tos that might be a violation, that the social media company would remove it, or you can ask them to remove it, maybe. But providing information that shows the post as inaccurate or incorrect.

Rory Bellina (22:10):
But are you allowed to do that?

Conrad Meyer (22:11):
Well, I, I think it depends on what you, what you’re able to do. In other words, you can’t submit phi, right? Right. So you have to be very careful in how you craft, if you’re gonna take that route, what you’re gonna say, How are you gonna say it? Because you don’t want to inadvertently release the phi.

Rory Bellina (22:29):
And I think what you’re discussing is what most people know is, you know, reporting a post. So I report this post as spam, or phishing or inaccurate, or, But

Conrad Meyer (22:37):
If you have read the tos now, if there’s something in there that can help you, I think it’s best to use that in the reporting of misinformation.

Rory Bellina (22:44):
Sure. So what about the practice that, you know, has these various social media pages and you think a competitor or some sort of bot is out there trying to just plummet their page, leave as many one star Google reviews as they can, or post comments and, you know, it’s not a real patient, it’s an account that was created minutes ago. You know, I think that that’s becoming a problem for different providers. I know it, I know it’s an issue a little bit in the legal world, at least it’s been here recently, right? Where you’ve got competitors that are trying to drive down really your, your page on a search result. If you’re searching for orthopedic surgeon in New Orleans, and you know, Conrad, you wanna be at the top of that. But if you, you’ve got, if you’ve got a lot of issues going on, or, you know, someone could go in there and leave as many negative views as possible. So your ranking is gonna be low on whatever site you’re using to, to search and sort by highest to rate highest to lowest doctor.

Conrad Meyer (23:43):
Now, interestingly, they have services out there that verify reviewers. In other words, these ghost reviews Sure. Or these these, these negative ghost reviews where they’re gaslighting somebody. you know, there, there, there are companies out there that, that help with verifying Sure. Whether or not that it’s an accurate real life person. how they do that, I don’t know. Right. but I I, I’ve, I’ve read about them. I’ve seen them, and I haven’t utilized them. So interestingly though, if you can show, I mean, I guess this is a really interesting situation where you can go to the to the social media outlet and ask that the post be removed, because it is, it is basically a ghost review. Right. Or, you know, and ask them to investigate, investigate this to see if it’s an actual real profile. Maybe someone just created a fake profile and is doing exactly what you’re saying.

Rory Bellina (24:39):
Yeah. And I, and I think the kind of the overall theme or discussion that we’ve, that we’ve come to is, it’s really important for practices to have policies and procedures in place. I know they, they probably don’t want to hear that. And that’s, that’s boring. And they’re thinking, Oh, well, you know, the lawyers are just kind of looking to, to give us more red tape or, or more work to do. But it’s really important, I think, to protect the practice in the law. I mean, if they have a set of rules that show, Okay, we’re gonna, we’re gonna post videos on Facebook, but we’re gonna check these things. The computers in the background are locked, the filing cabinets are closed, They’re,

Conrad Meyer (25:15):
That’s from a HIPAA standpoint. So there’s,

Rory Bellina (25:16):
There’s no patients in the hallway. Like there’s reasons why we’re putting these in place, and I know it’s a pain, but it’s really important because you don’t want to get that, get that phone call from OCR saying, Hey, you know, we’ve got a complaint because Conrad, there, there’s a video on your Facebook page and it shows Conrad leaving an exam room, and he didn’t want anybody to know that he was there. Something as innocuous as that, you know, could, could cause issues for your practice. So having these kind of boundaries in place, I think is, is is the advice that I always like to give practices.

Conrad Meyer (25:50):
What about content? Okay. That’s, that’s the next, that’s not, not just, I’m not talking about Phi Rory, Right? I’m not talking about, you know, information about patient. I’m talking about just general content. Well,

Rory Bellina (26:02):
Words. You’re the MALS expert. Let’s talk about, let’s, let’s talk about that. Let’s say,

Conrad Meyer (26:07):
Let me ask you, well, let me ask you this. Lemme throw the ball in your coy for a second. Let me see what you think about this. So, if the content, for example, is offensive

Rory Bellina (26:16):
Yep.

Conrad Meyer (26:18):
Could be characterized as discriminatory racist or whatever that the content itself offends someone, How do you, how do you talk to providers about that? Have you ever had that question come up to you before?

Rory Bellina (26:39):
I’ve had it come up to me before on the aspect of employees, and I think Got it. I think I’m, I’m, you know, I would venture say most businesses have run across this before. I’ve had it come up to me before where I’ve received the call from a practice administrator who said one of my employees made essentially like a, a, a selfie video like themselves, like essentially a tick. I think it was a TikTok of them saying some very offensive things. And they happened to be wearing the scrubs from work that day, and it had our very distinguishable logo and, and our entity name on the scrubs in the video that she’s making that was very the video was just discriminatory. Now, it was on her page or private page, so only her friends could see it. But of course, one of her friends also works here and shared it with me.

(27:29):
And so, you know, we had to look at that and, and you, you skate this line between, okay, are we gonna talk about first amendment freedom of speech verse, You’re an employee and you’re wearing your company’s clothes, You know, are you doing this even if you’re not doing it on company time? Just the kind of what you, we talked about earlier in the show, just the common sense of you’re a reputation of the company that you work for. I know this was instilled on me at the high school I went to. I know it was instilled on you at the high school that you went to. Right. If you’re in that uniform, you better be sure to act correct, because there’s no telling who’s around you and you, you, you’re, you’re, you’re an extension of that entity. Right. And so I think that’s the, the issue that comes into fact.

(28:13):
And, and ultimately they reprimanded this employee, put it in her note and explained to her, Look, if you’re gonna do this kind of stuff, you know, it, it’s hard to regulate that with, with the whole freedom of speech issue that that comes into it. But you can’t be doing it wearing our scrubs. And you can’t be, please hone this in because you’re, you’re getting really close to doing something. And, and it ended up having this practice rewrite their policies and procedures and add a little bit more teeth to it, to where if something like this happened outside the scope of their work mm-hmm. , that they were able, that was now a fireable

Conrad Meyer (28:48):
Offense. Well, let me ask you this. I mean, you’ve seen this in employee handbooks and, and then you’ve seen this in employment agreements, I’m sure. Yes. Even independent contractor agreements, a termination provision that basically says you’ll be terminated for cause should you violate any policy or procedure or you know anything that in our more

(29:07):
Moral turpitude of moral and dignity or Sure. And that’s so

Rory Bellina (29:11):
Broad. It is. And it’s, it’s good and bad when it’s broad. Right. And in, in our case, in this instance, the, the our client, the, the

Conrad Meyer (29:19):
Practice, it is that, let me ask you this. Is that a terminable offense?

Rory Bellina (29:23):
I think, I think you can make the

Conrad Meyer (29:24):
Argument that on the private side, So in other words, not, not a federal, not not a state or federal employee. Sure. I’m a private employer. I have a contract with an employee, and in that contract that says I could terminate for cause. Should you do anything that would be considered, you know, morally wrong. Sure. Anything like that. Some very broad like that. What do

Rory Bellina (29:41):
You think? I think it depends on, and I know the non attorneys are gonna hate to hear this. I think it depends on the situation and the circumstances that are involved in the one that I’m talking about, what she was saying. Yes. I think if you, she would not want that to be put in front of a judge or obviously a jury or in any sort of discovery. This video that she made, I think that it, it’s on a case by case basis. So I think you really have to evaluate it. You’ve gotta look at the character of the employee, you know, kind of look at the totality of it and, and really decide, Okay, are we gonna give her a warning and a little bit of education and say, if you do this again, you’re gone. Or make it immediately, What she said was, was not appropriate.

(30:22):
they decided to give her, give her another chance at this point, but, but add more teeth to their policies and procedures. And they added in there a whole, we worked with them on adding in there a whole social media thing saying, Look, even if you do this on your, on your public time, if you do it in social media, and I think this kind of loops back to our overall theme today is, you know, I I would make the argument that social media is really not private. I mean, it, it’s available to everybody and pretty much, unless you’ve got it really locked down. And so we added in there some provision saying if you do something that’s on social media and we find out about it, that’s fair game. That’s almost as if you did it when you were in the building.

Conrad Meyer (31:01):
Nah, I agree. And, and one thing, interestingly when I talk to residents, right? Mm-hmm. and I talk to ’em about, you know, they’re about to, they’re about to leave residency and answer real world. Sure. And and even young lawyers, Cause you know, when I teach a law school, I mean, I, I, or you know, whatever, I, I talk, this is the same, it, it’s a similar path. I’m, I’m going here and it’s this, it’s, you are now watched like Big brother. Yeah. I mean, everyone, if you’re, if you look at me and tell me that no hospital or no group practice, or no law firm or whatever business you’re going into that they don’t do social media investigations on you before they hire you, you’re dead wrong. Absolutely. So if you’re out there right, on Bourbon Street, you know, you know fla, you know, whatever you’re doing Yeah. That, you know, on, on top of the cat’s meow deck and doing whatever you’re doing and, and having fun and maybe getting a little loosey goosey. Yeah. But yet you’re applying to a place that’s, you know has a no alcohol policy. Right. In a very, very religious area that might find that very offensive. You might not get hired.

Rory Bellina (32:09):
Absolutely. Absolutely. And you have to be prepared for that, for them to find that kind of stuff.

Conrad Meyer (32:14):
Remember the doctor that got stuck in the was it the Uber driver in Florida or New York or someplace? I can’t remember. Yes. Remember that It made national news. Yes. She got out screaming, yelling, and all acted, you know, I, I mean, I, I thought in the beginning, maybe, you know, I don’t know, but I I I have to assume that affected her professional career.

Rory Bellina (32:33):
You know, the, what’s interesting that you brought up about the residents leaving school is mm-hmm. , I’ve seen for the first time on this side, I was representing an employee. And in her employment application there was a section where she had to fill in her Facebook handle, her Instagram handle, her Twitter handle. They wanted to know all of it. And it was basically like the, the, it was kind of in that beginning section, which your name, your address, your social, they wanted to know all that. And that was part of their application. Cuz they’re gonna go check that stuff and they wanna see what’s on there. Cuz you’re an extension of that entity.

Conrad Meyer (33:05):
See I know, I, I’ve heard of people who go and now they make the, their, their their their incognito profile.

Rory Bellina (33:11):
Sure, sure. They’ll change their names or they’ll change, but their middle names or something.

Conrad Meyer (33:15):
Not even something totally different

Rory Bellina (33:16):
Sure. Until they’re credentialed, then they’re in, and then they’re fine with that. You know, one thing I wanted to do briefly is I wanted to throw it back to you. You talked about content and, and Right. Since you’re the malpractice expert, I want to a ask you about that. So, you know, have you heard any concerns or let’s say a doctor, you know, says, Hey, I wanna post a little video of what it would look like to do this procedure or talk about this procedure. You know, it, are there concerns for them posting that online or showing, because then is someone gonna find that video? Or, or is it gonna come up in a deposition and say, Well, Dr. Conrad on Facebook, you said you would’ve used this scalpel and this screw and this and this retractor. But in your notes on the surgery on Mr.

(34:01):
Bellina, you didn’t do that. So why didn’t you, you said in on Facebook that this was the best practice and you didn’t do it for him. I mean, what are the concerns with kind of putting, cuz that video’s gonna live out there forever. It will. What are the concerns with having very technical procedures or medical answers? I, I know, I know I see it very limited, but I kind of think that doctors are a little bit timid or afraid to give medical advice on social media because it’s gonna come back and bite them in a malpractice issue if they go against it 10 years down the road.

Conrad Meyer (34:33):
Well, every, every malpractice case we do a social media investigation. Okay. You know, it just depends, especially on the experts on the other side since I do defense work. but to answer the question there, if you go on YouTube today, there are hundreds and thousands of videos of procedures. So, so the first part, can you put a video of a procedure online? It’s already there. Right? So the, the, so usually those physicians require the patients to sign releases of information. Right. So they can post their the video. So that’s not uncommon. Okay. to your point about Mr. Bellina’s surgery Right. Your, you know, hypothetical surgery. Right. Where I went, the issue, the way I would respond to that, I’d say it depends because if that video was made maybe two or three years ago, maybe there are better screws now, maybe there are better techniques.

(35:16):
Okay. Maybe there’re better point tools. So, so it depends on the date. So in other words, if the nexus of your surgery see is close to that close proximity mm-hmm. to the date of that video. Sure. I think you have a better argument to say, Well, wait a minute, your video was three or four months, five, six months ago, and you said this was the screws we need, this is the way to do it. Right. Yet it just never happened. Whereas if it’s 3, 4, 5, 6 years from now, I think you can argue, you can arguably say, Well, wait a minute, medicine changes so fast, you know, now instead of, you know, regular stainless steel crews, we have, you know, titanium screws, we got this, we got all new equipment. So I think you have to put it in context based on the date of the video. And then, and I wanna tell you this, each patient is different. You know, if, if every patient was the same, if every you know, thing was the same. Sure. You know, medicine is not like that. Medicine is an art. Why? Because everything changes into so many variables. Sure. So I don’t think you can cookie cut things and say, Hey, every time this happens, you’re gonna do x I think you do in some areas. Sure. But I think there, there needs to be some variables. And I would argue the

Rory Bellina (36:21):
Variable, and that’s a good point because I’ve seen, and I, and I’ve had it sent to me before a simple video that someone, it was it’s coming to mind now. It was a practice where they weren’t to post a video of just how to do a simple split if you’re out hiking and Right. You sprain your ankle how to do it. and, and they made the video and they had posted it, and they had posted it, and they had gotten resha to like an, like an outdoor hiking type.

Conrad Meyer (36:48):
so

Rory Bellina (36:49):
It, social media, like, yeah. It was, it, it was really good for the practice that got very exposure. However, in the comments, people start making know, that’s incorrect. It’s too tight here. It it’s too tight there. You know, those are some of the pitfalls that I think practices will see because then you have the doctor worried, Well, am I giving medical advice? Is this considered medicalized? Is there any patient relationship? Right? Right. All these questions come up, you know, do I have a liability concern? You know, what do you say to someone like that, that just wants to make a informative video posted online, but you’re concerned about people nitpicking you or, or something like

Conrad Meyer (37:22):
That. So I, I get this question a lot about blogs, right? Sure. V blogs, regular blogs. Yep. and even social media policy. So, so, you know, one thing we we put on is a disclaimer. This is not a physician patient relationship. This is just educational. it’s not advice that, you know it’s not advice directed to one patient. So there, there’s no physician patient relationship. There’s been no review of systems, no history, no physical, whatever. It’s Right. So we don’t do that. Okay. We put a disclaimer on there, but then also I think in the video, the, the, the, the provider can say that, Hey, look, this is not this is not establishing a physician patient relationship. Right. This is for educational purposes only. Okay. And, you know, state that on the video or have the disclaimer in the video, and that’s it. I think you’re fine.

Rory Bellina (38:08):
So I think the overall, I think the overall kind of theme that, that we’ve reached today is it’s okay to have social media page, It’s okay to post content. I

Conrad Meyer (38:18):
Think it’s a necessity. I think I, yeah. I mean, I don’t, I don’t, I don’t think it’s just, Okay. I think you have to

Rory Bellina (38:22):
Do it in this competitive market where,

Conrad Meyer (38:24):
You know, there’s no choice.

Rory Bellina (38:25):
The big thing right now is choice. And I know we’ve talked about it before when we have an upcoming episode talking about price transparency, especially in 2022, when a lot of these new changes go into effect. Right. Everyone wants to compare everyone. And if you have four and a half stars and the other doctor has four stars and y’all are pretty close in price or proximity to where I am, you know, I think that it, the social media aspect is just, like you said, it’s almost required. Now,

Conrad Meyer (38:52):
The problem is though, and I will tell you this, and I know we kind of have to wrap up, but I want to tell you this, when you have health grades or any kind of review site, doesn’t matter what it is. Sure. I mean, the one I see all the time is health grades. and it could be, I know they have a lot more, It’s not just that you have to ask yourself, you know, how are the reviews being received? Right. How are they actually calculated? And it’s hard because, for example, medical malpractice suits are public, but peer review data mm-hmm. on every provider in the country is confidential. Right. So in other words, you might have a patient who literally has a great patient experience, Oh, I think this doctor’s nice and sweet, right? Oh, he’s great. Or she’s great and they’re giving him positive, positive reviews and people are all relying on that. Right. But that doctor might have 10 mile practice suits. Right. And or be reported for suspension, and nobody would ever know that.

Rory Bellina (39:51):
That’s a great point. That really

Conrad Meyer (39:53):
Is. Nobody would know that. So,

Rory Bellina (39:54):
And so many people are relying on those, those stars on Google.

Conrad Meyer (39:58):
So do we have some detrimental reliance going on here or some misplaced reliance? And so the public needs to understand that.

Rory Bellina (40:05):
That’s a really good point.

Conrad Meyer (40:07):
You know, so I mean that’s, that, I think that’s something we’re gonna talk about in another podcast. Yes. Yep. On peer review and, and review sites and, and social media. because I think that’s gonna be an episode in of itself.

Rory Bellina (40:19):
And like you said, at this point, I’ll agree with you on that. It’s a, it’s almost a requirement that if your practice wants to continue growing and kind of keep up with the current trends, you’ve gotta have the pages. Kind of my take home advice is kind of, you need to have a guard keep, you need to have some policies in place to make sure that before the post is made, it’s, and

Conrad Meyer (40:38):
Everyone needs to know about it.

Rory Bellina (40:39):
Right. Exactly. And I think you, and then secondly I would advise all practices to have some sort of social media policy in place for their employees. So those issues don’t, that don’t go on when the employee is on their lunch break where in their scrubs or on their way home posting a video

Conrad Meyer (40:57):
Spot question.

Rory Bellina (40:58):
Oh

Conrad Meyer (40:59):
Boy. Ready? You’re a physician. You, you have a physician client call you and say, Oh, by the way, on my Facebook page, one of my patients just front of me, do I accept yes or no? Haha

Conrad Meyer (41:11):
, I got you. See,

Rory Bellina (41:12):
You know, I I,

Conrad Meyer (41:13):
Yes or no, shoot. Would you, don’t you recommend that they friend the patient?

Rory Bellina (41:18):
You know, I don’t have, I I honestly, I don’t have that much of an issue with it. If the, if the patient’s requesting to be the friend of the provider, I don’t have a huge issue with it. Now you get into that lines of, you know, pro as the physicians aren’t supposed to date their patients, and that’s, that’s kind of more of a state issue or state by state issue. I’m not, I don’t have a huge issue with it, but it’s gonna come into play of is, is this patient gonna find out things about you or see things or, or posts that you make that, you know, is it gonna taint this? You, you I provider push relationship.

Conrad Meyer (41:53):
You and I were differ on this. I would say absolutely not. Okay.

Rory Bellina (41:55):
No

Conrad Meyer (41:55):
Way. Okay. You know, if you wanna, if you wanna friend someone,

Rory Bellina (41:58):
No, it, it

Conrad Meyer (41:58):
Depends. And you would friend the, if you wanna friend someone, friend the group practice.

Rory Bellina (42:01):
Let me backtrack a second. Are you friends with this patient or is it just because you saw that one time for a Okay. A toenail or

Conrad Meyer (42:08):
Something? Maybe I’m, I should add more facts to this. Okay. So you don’t know the patient. You, you didn’t go to high school, college, You don’t run in the same crowds. Literally the only connection you had with the patient is that they came to see you for professional medical services.

Rory Bellina (42:22):
Yeah. So, all right. Well, I’m gonna go back on my answer under those facts and say, I think that you

Conrad Meyer (42:28):
Wanna reset.

Rory Bellina (42:28):
Yeah. I wanna, we’re gonna scrub this and, and I’m gonna, we will re-record my answer this way. I think it’s, I think that in that situation, I would say no is probably not because you’re not, you’re

Conrad Meyer (42:40):
Opening yourself up.

Rory Bellina (42:41):
Yeah. I, I think so. Why no, if it’s something different where it’s like you, like you mentioned it’s a friend, or you’ve been going to see this guy for five years and you’ve got common interest, I think that’s okay, because that’s really more of a friend in the true sense of friend request. But

Conrad Meyer (42:54):
One, Well, let me ask you this. One thing that I’ve told doctors to do, and I don’t know if you’ve done this, so that’s how doctors make a professional Facebook page Yeah, yeah. And have your personal Facebook page. Yeah. Yeah. So if they wanna follow you professionally, I don’t have a problem with that. Sure. However, on your personal Facebook page, Absolutely not. Yeah. Yeah. Oh, the group practice, you know, and,

Rory Bellina (43:12):
And I think it’s, it becomes hard, right? Well, I’m gonna give you a on the spot question. What do you do if you know you’re already friends with the person and then they switch over to come see you? Now? Are you gonna go defriend them? No.

Conrad Meyer (43:24):
No, I’m not gonna do that. Why? Because they had a previous existing relationship with them prior to me seeing them in a professional capacity. So I, I I think that changes the fact scenario. If I know someone was friends with someone, had a friendship with them Sure. prior to me seeing them professionally then I don’t think it’s a problem. Sure, sure. I mean, I got plenty of friends on my Facebook page that are doctors that I’ve seen. Right. You know, so I don’t, I don’t see that it’s an issue. Okay.

Rory Bellina (43:48):
Well, well, overall, I think that the, the, the takeaway is having a plan in place, having that gatekeeper. You’ve gotta have the pages now, but there are some hiccups and some missteps that, that you can make. It’s really important to just, just keep all those in mind. And if you have questions, I know I’ve done ’em before. I know you’ve done ’em, we’ve got the policies and procedures to kind of help based on, based on your practice.

Conrad Meyer (44:12):
I agree. I agree. And look, we’re gonna, we’re gonna wrap this up. We’re gonna be doing a few more parts to this type of topic on our podcast. And subsequent podcast. We’re gonna be talking about maybe some in depth details on the policies. We’re gonna go into defamation cases looking at how to respond, peer review, p absolutely talk about peer review. So we hope all of you stick around for those episodes coming up shortly. We thank you very much for joining us this morning on our podcast here at csw. We look forward to having you back for future podcast. Please make sure you hit the subscribe button and email Rory, what’s your email,

Rory Bellina (44:47):
R Bellina at chehardy.com

Conrad Meyer (44:49):
And cm@chehardy.com. We look forward to hearing from you soon. Thank you, and have a great weekend, folks.

Rory Bellina (45:00):
Thank you for listening to Health Law Talk presented by Chehardy Sherman Williams. For more information or to contact us, please visit our website linked in the description below. Also, please be sure to subscribe to our podcast and follow us on Facebook, Twitter, LinkedIn, in YouTube – links in the description below. Thank you for listening.