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July 26, 2009

The Lawyers Don't Always Say No: Bringing Legal into Health Care Social Media Strategic Planning

I led one of the roundtable discussions at last Thursday's Social Communications & Healthcare conference in New York City.  After a morning of back-to-back case studies presented by folks from the CDC (swine flu resources) to McNeil (online ADHD communities) to Pfizer (on twitter and other forms of transparency) to word-of-mouth marketing consultants (for all presentations, see agenda, audio and tweetstream at link), participants had two rounds of social media roundtable speed dating -- there were about 30 simultaneous sessions.  My sessions' topic: "The Lawyers Don't Always Say No: Bring Legal Into Health Care Social Media Strategic Planning."

The participants in my sessions included hospital administrators, pharma marketers, PR and media consultants, and one or two lawyers.

I kicked things off by observing that many organizations decide that they ought to have a social media presence and jump in without exploring why they are doing so, what they hope to accomplish, and what level of resources they plan to devote to such efforts.  Folks chimed in with the need to listen as a first step: listening to competitors, and listening to what the public is saying about you.  Listening to competitors allows you to benchmark what other folks are doing, and get a sense of best practices.  Listening to the public is a strategy followed by strong brands across the entire economy, not just in health care.  It allows you to pick up on complaints, problems, peeves, and step in and address them, either on line or off line, as appropriate, and to communicate publicly (within limits) about how issues have been addressed.

We focused on the following key areas of concern:

  • Privacy.  This realm is governed by HIPAA and related state law.  Particular conditions have additional layers of regulation and issues.  For example, one participant raised the issue of communication in a branded forum by a parent of a minor child with AIDS.  How can one establish consent to the release of such information in a public forum, and what is the exposure of the forum's sponsor with respect to an unauthorized release of that information?  My take: include disclaimers and warnings galore, so that posting in such a form constitutes consent to the public discussion.  The question of who has the right to grant such consent (parent vs. minor child vs. emancipated minor) is the same whether we are talking about the social media context or other situations.
  • Liability.  Several types of liability concerns seem to be holding back many healthcare and pharma organizations from getting their feet wet in social media.  
Many pharma organizations seem paralyzed when it comes to branded online social media forums, due to concerns about the obligation to report adverse events involving their products that come to their attention.  My take: this is ostrich-like behavior.  While the safest course is to wait for the FDA to come out with social media guidelines, some common sense can be applied in this situation: Don't set up an online forum unless you are prepared to moderate and filter comments, and forward reports of adverse events to regulatory and compliance departments for review and reporting if necessary.  Avoiding reports of adverse events doesn't mean they're not happening, and learning about more such events earlier on will ultimately lead to improvements to products and perhaps avoidance of the multimillion dollar lawsuit.  Finally, many online comments are made anonymously (or untraceably), and anonymous reports are not reportable.

Healthcare organizations are concerned about medical malpractice liability as well.  Again, disclaimers are the order of the day.  While one can conduct a physician-patient relationship online, best practice would be to initiate the relationship in real life, and obtain appropriate authorization from the patient to continue the dialogue on line.  Some folks are more open than others, and are willing to post details about themselves that others consider private.  If someone posts these details in a public forum, that constitutes consent to the disclosure itself.  A provider's response, however, should be more circumspect, absent a prior written authorization to communicate more publicly.

All organizations may be concerned about the public posting of derogatory or defamatory opinions or information about employees, administrators, patients.  My take: policies and procedures should be in place regarding the making or circulating of such statements in whatever form or forum: real life, web 1.0, web 2.0.  The social web does not always require the creation of new rules of the road; often, it requires a re-examination of organizational culture and approach in other contexts, and those approaches may then be extended into the web 2.0 environment.
  • Regulation.  I used the FDA's warning letter to General Mills about its marketing of Cheerios as a cholesterol-fighting drug as an example of the need to be flexible in anticipating the unexpected: the regulatory salvo fired across the bow with no warning, the issue coming at you out of left field.  Privacy and liability concerns seems to cover the waterfront of regulatory concerns right now, but other issues are likely to arise over time.
  • Flexibility.  There was consensus around the table that it is difficult, if not impossible, to establish a social media policy in a vacuum, and that it is paralyzing to think that one may not begin to allocate resources to the effort without putting such policies in place up front.  My take:  Social media strategy is a journey, not a destination.  There will be many mid-course corrections.  My main piece of advice to the social media practitioners around the table: talk to legal early and often, so that you don't find yourself too far down a path that turns out to be a legal or regulatory dead end.

My discussion notes (linked to above) include links to other posts of mine on social media topics.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting

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