My Facebook Page Can Be Used As Evidence?! I Wish Someone Had Told Me!

My Facebook Page Can Be Used As Evidence?! I Wish Someone Had Told Me! By Stephanie J. Rodin, Esq.{3:40 minutes to read} Twitter. Instagram. Facebook. LinkedIn. Public social media sites are prolific, and their use is increasing in our society. Almost everyone has some type of profile on a social media platform. Sharing information has become as commonplace as breathing; however, unlike the latter, the former has imbedded risks. It is important to not only be cognizant, but to also be cautious, of the content that you put on the internet.

Under New York law, any statements or photographs that are posted on social media websites may be discoverable and can then be utilized in trials or legal matters brought against healthcare providers or patients.  

Undoubtedly, sharing specifics about a particular patient and their treatment is a HIPAA breach. Yet, if a healthcare provider or staff member posts general information about patients or the way that the office is run, the information may be considered material and necessary and used against the provider in court or other venue.

For example, a patient may claim that a healthcare provider used a particular procedure, yet the physician may argue that a different procedure was used. If, on his public profile, the physician claims that he is one of the few physicians who utilize the procedure that the patient is purporting to have undergone, that claim is discoverable and could hurt the physician’s case.

Alternatively, a patient may bring a lawsuit against a provider claiming incapacitation and serious injuries. However, a Facebook profile with public photographs may contradict this narrative by showing the patient engaged in vigorous activities.

But what if I utilize privacy settings on my social media profiles? Is the content still discoverable?

In the event that you utilize full privacy settings, one would really need to demonstrate that the content on your private account would be material and necessary to the case at hand. The Courts look at this on a case-by-case basis. However, if the privacy settings aren’t fully private, and there is some content that is public, which is more common with the posting of photographs, it may create the impression that there is more on the private profile to help a case. In such cases, the court may grant full access to the entire profile, regardless of the level of privacy.

There is a two-prong test to determine if a profile can be discoverable:

  1. If the content of the profile is material and necessary to the matter at hand, and;
  2. If production of the content will not violate the user’s privacy rights.

If a case passes this two-prong test, then the profile can used as evidence.

It is imperative for everyone employed at a health care practice to be careful with what you, employees, or anyone in your practice post on public social media sites. A patient may be able to access your information and vice versa. Ultimately, anything on the internet can be used against you and potentially damage your legal position in some future proceeding.

Do you know what content is public on your social media sites? Do your employees know that their content may be discoverable as well? Take the steps to ensure you are up to date on these settings, and that your staff is too!

Stephanie J. Rodin, Esq.Stephanie J. Rodin, Esq.
Rodin Legal, P.C.
Email: info@rodinlegal.com
Tel: (917) 345-8972
Fax: (917) 591-4428

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