Article: TME200189 Date: January 23, 2013 Time: 16:45

Advanced Emergency Nursing Journal

Vol. 35, No. 1, pp. 53–56
Copyright 
C 2013 Wolters Kluwer Health | Lippincott Williams & Wilkins

The Legal and Ethical Implications

of Social Media in the Emergency
Department
Rachel Lyons, DNP, CPNP-PC/AC, DCC
Courtney Reinisch, DNP, APRN, DCC

Abstract
Social media is a growing and popular means of communication. It is understandable that health care
providers may not share identifying information on patients through these sources. Challenges arise
when patients and family members wish to record the care provided in the emergency department.
The health care provider may be faced with an ethical and possibly legal dilemma when social media
is present in the emergency department. This article seeks to discuss the legal and ethical principles
surrounding social media in the emergency department. Key words: ethical and legal implications,
HIPAA, social media

I T IS 4 p.m. and the trauma center is
extremely busy. The nurse practitioner
(NP) is examining a 16-year-old patient
with a laceration requiring repair. As the
NP prepares the wound for closure, the pa-
tient starts recording the procedure with her
smartphone and states, “this will be a good
‘YouTube’ video.” Is this legal? Is it ethi-
cal? What about protection of privacy for the
health care provider?
Understandably, many hospital administra-
tors have instituted no-tolerance policies and
Author Affiliations: Rutgers University College of
Nursing, The State University of New Jersey, Newark,
New Jersey (Drs Lyons and Reinisch); Pediatric Emer-
gency Department, Newark Beth Israel, Newark, New
Jersey; and Hasbro Children’s Hospital Emergency De-
partment, Providence, Rhode Island (Dr Lyons); and
Overlook Hospital Emergency Department, Summit,
New Jersey (Dr Reinisch).
Disclosure: The authors report no conflicts of interest.
Corresponding Author: Courtney Reinisch, DNP,
APRN, DCC, College of Nursing, 180 University Avenue,
Newark, NJ 07102 (Courtney.reinisch@rutgers.edu).
DOI: 10.1097/TME.0b013e31827a4926
have blocked the use of social media sites by
their employees while at work. But, what hap-
pens when it is the patient who is recording
the activities of health care provider? Is so-
cial media simply another form of communi-
cation? Similar to e-mail or discussing a patient
in the elevator, the patient’s privacy may not
be protected, yet what are the implications
when the health care provider’s confidential-
ity and privacy are possibly breached?
Regrettably, social media can enable content
posted during a momentary lapse in judgment to
spread rapidly beyond the intended audience with
one click. Much like a mirror, social media can
reflect the best and worst aspects of the content
placed before it for all to see (Greysen, Kind, &
Chretein, 2010, p. 1228).
The Health Insurance Portability and Ac-
countability Act (HIPAA, 1996) is a federal law
intended to protect patient privacy by limiting
how identifiable data may be used. Protected
information under HIPAA is anything related
to the past, present, or future of a patient’s

53

Copyright © 2013 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
 Article: TME200189 Date: January 23, 2013
54
physical or mental health. To go a step fur-
ther, “since the Health Information Technol-
ogy for Economic and Clinical Health Act was
passed in 2009, the scope of HIPAA privacy
and security protections has been widened
to include things such as notifying patients
of privacy breaches” (Fisher & Clayton, 2012,
p. 105).
ETHICAL AND LEGAL IMPLICATIONS
Engrained in nursing education and practice
is the ethical principle of nonmaleficence, do
no harm. As health care providers, nurses
must adhere to the federally mandated pri-
vacy rules in HIPAA, by not discussing iden-
tifiable patient data in public places, such as
the cafeteria or an elevator nor in the form
of social media such as Facebook or Twitter.
As a health care provider, communication is
an integral part of our practice and the need
to discuss patient information is essential for
collaboration and provision of care. This com-
munication may actually not take place face
to face, but rather through social media. Ac-
cording to HIPAA (45 C.F.R. § 164.530), this
discussion can be in the form of social media,
such as e-mail, “provided [they] apply reason-
able safeguards when doing so.”
In the age of growing technology, social
media is at our fingertips, whether it be in the
form of a tablet, a computer, or a phone. To-
day’s phones are indeed “smart,” capable of
more than just a simple means of voice com-
munication. Phones are equipped with pro-
cessing power, embedded sensors, and stor-
age capabilities (Christin, Reinhardt, Kanhere,
& Hollick, 2011). Phones mimic and some
may outperform personal computers, allow-
ing video and sound recording, photography,
downloading/uploading files, and disseminat-
ing information with the click of a button
or a tap of the screen. Much like the pa-
tient depicted at the beginning of this arti-
cle who wants to record the procedure of
wound closure, health care providers may too
want to “blog” or “tweet” about an event that
took place at work or about a case that is
interesting.
Copyright © 2013 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
Time: 16:45
Advanced Emergency Nursing Journal
As health care providers, we are reminded
about the consequences of a HIPAA violation
and how severe the punishment may be.
Violations may result in both civil and criminal
penalties, including fines and possible jail time. A
health care provider may face personal liability and
may be individually sued for defamation, invasion
of privacy or harassment. Particularly flagrant mis-
conduct on social media websites may also raise
liability under state or federal regulations focused
on preventing patient abuse or exploitation. If the
health care provider’s conduct violates the poli-
cies of the employer, the nurse may face employ-
ment consequences, including termination and the
reputation of the health care organization may be
(National Council of State Boards of Nursing, 2011,
p. 2).
HEALTH CARE PROVIDER’S RIGHTS
The law is quite explanative for health care
providers who mishandle the privacy and con-
fidentiality of their patients, but it is vague
when it is the patient breaching confiden-
tiality of the health care provider. There are
some practices that do not permit video or au-
dio recording as it violates the confidentiality
rights of the other patients and infringes on
the privacy rights of the employees.
A handful of states have passed a “two
party consent law” that prohibits recording
or eavesdropping on any confidential com-
munication, including a private conversation,
“without the consent of all parties to the
conversation” (California Penal Code, § 632).
These “two-party consent” laws have been
adopted in California, Connecticut, Florida,
Illinois, Maryland, Massachusetts, Montana,
Nevada, New Hampshire, Pennsylvania, and
Washington. A two-party consent law may
apply when it comes to recording a health
care provider without his or her consent (Sim-
ple Signal, 2012).
FUTURE DIRECTIONS OF SOCIAL MEDIA
Before taking the drastic step of closing your
social media accounts or disconnecting your
e-mail, there are some important things to
 Article: TME200189
January–March 2013 r Vol. 35, No. 1
consider. Social media is here to stay and con-
tinues to grow. In fact, more than 40 million
Americans use social media several times a day
(Edison Research, 2010). Surely, social media
has reached a global population and perhaps
it can be a useful tool for patient education.
Allowing patients to access health care ser-
vices via e-mail or other types of electronic
media may save an unwarranted trip to the
office. It may serve to remind patients of an
important change in their health care or up-
coming appointment. A descriptive study by
Fisher and Clayton (2012) on social media and
patient education found that “many patients
want their health care providers to use so-
cial media and are interested in mobile appli-
cations to help them live healthier lifestyles”
(p. 106).
Understanding that social media may be a
double-edged sword, nurses must optimize its
usefulness by setting limits within the prac-
tice setting. The American Nurses Association
(2011) and the American Medical Association
(2011) have published guidelines for social
media practices, both of which state to re-
main aware of guidelines regarding patient
confidentiality and refrain from posting iden-
tifying information about patients, including
photographs.
IMPLICATIONS FOR PRACTICE
There are ways to manage the patient who
wants to record the NP performing a proce-
dure and post them online. Useful strategies
posted on the website www.thedoctors.com
include the following:
r Write an official policy that prohibits the
use of recording devices in the ED.
r Post signs in the waiting room and patient
care areas to inform patients and their fam-
ily members that any type of electronic
recording is prohibited in the ED and that
this policy is to ensure the privacy and con-
fidentiality of all patients and health care
providers.
r Remind staff to be alert for patients and fam-
ily members who may be recording con-
Copyright © 2013 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
Date: January 23, 2013 Time: 16:45
Social Media in the ED 55
versations or other events in the ED. In
the event a patient or family member is ob-
served violating the policy, the staff mem-
ber should stop the conversation and po-
litely request that the recording cease.
r Encourage patients and their caregivers to
take notes to help them remember impor-
tant information. Emphasize that they will
receive written instructions upon ED dis-
charge.
CONCLUSIONS
Social media is here to stay. Caution must
be used to protect patient’s and health care
provider’s confidentiality and avoid HIPPA vi-
olations. Being proactive and communicating
limits will protect the patient and health care
provider for legal and ethical challenges asso-
ciated with the use of social media in the ED
setting. Developing and implementing a social
media policy will help ensure that employ-
ees are using social media properly within
the guidelines provided by the organization.
We are hopeful that this article will continue
to foster the discussion of social media and
health care and how we can shape it to bene-
fit all.
REFERENCES
American Medical Association. (2011). AMA policy: Pro-
fessionalism in the use of social media. Chicago, IL:
Author.
American Nurses Association. (2011). ANA’s principles
for social networking and the nurse. Retrieved from
http://nursingworld.org
California Penal Code§ 632. Retrieved from http://www.
leginfo.ca.gov/cgi-bin/displaycode?section=pen&
group=00001-01000&file=630-638
Christin, D., Reinhardt, A., Kanhere, S. S., & Hollick, M.
(2011). A survey on privacy in mobile participatory
sensing applications. The Journal of Systems and
Software, 84, 1928–1946.
Edison Research. (2010). The social habit—frequent
social networkers. Retrieved from http://www.edi
sonresearch.com/home/archives/2010/06/the_social
_habit_frequent_social_networkers_in_america.php
Fisher, J., & Clayton, M. (2012). Who gives a tweet: As-
sessing patients’ interest in the use of social media for
healthcare. Worldviews on Evidence Based Nursing,
9, 100–108.
 Article: TME200189 Date: January 23, 2013 Time: 16:45

56 Advanced Emergency Nursing Journal

Greysen, S. R., Kind, T., & Chretein, K. C. (2010). Online
professionalism and the mirror of social media. Jour-
nal of General Internal Medicine, 11, 1227–1229.
Health Insurance Portability and Accountability Act
of 1996, 45 C.F.R. § 164.530. (2011). Retrieved
from http://www.hhs.gov/ocr/privacy/hipaa/
understanding/summary/index.html.
National Council of State Boards of Nursing. (2011).
White paper: A nurse’s guide to the use of social
media. Retrieved from https://www.ncsbn.org/
Social Media.pdf
Simple Signal Call Recording Regulations. (2012).
Retrieved from http://www.simplesignal.com/pdf/
CallRecording regulations.pdf
The Doctor’s Company. (2011). Patient safety: Inter-
active guide for office practices. Retrieved from
http://www.thedoctors.com/ecm/groups/public/@
tdc/@web/documents/article/con_id_004066.pdf.

Copyright © 2013 Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.