By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law and Hartley Brooks, Law Clerk, The Health Law Firm
My firm has recently seen a significant increase in the number of investigations opened by state licensing boards over videos and even still photographs posted on social media or shared in chat rooms and listservs.
Unless you have a full-time public relations specialist who is also familiar with the rules, regulations, and laws governing your profession (and I am pretty sure you don’t), my advice is to stay off it.
Recent Cases Resulting In Investigations.
Here are a few of our most recent cases that have drawn complaints and investigations of their licenses.
Group Photo of Physicians Making Obscene Gestures.
A group of physicians in one organization was at a social event and decided to take a group photo. In a scene reminiscent of our POWs being held by the Vietnamese during the War in Vietnam (which I am sure they were too young to remember, and probably you, too), each individual in the group was “shooting the bird.” Pretty funny, huh? It got posted to a closed group chatroom. Others thought it was so amusing they reposted it elsewhere.
No problem, huh? Except that they were wearing lab coats with the hospital‘s name prominently shown in the photo. The hospital administration was not amused. Much weeping and gnashing of teeth followed. We got this one headed off with just some wrist-slapping involved.
Nurse Posts Video Rant About Non-compliant Patients.
In another case, we had a nurse who had posted a video on TikTok complaining about patients who were not compliant. Her rant, while emotional, did not include anything that would identify any patient or any hospital or institution. Nevertheless, a complaint was filed against her, alleging “HIPAA violations” (the new bogeyman) and unprofessional conduct.
The jury is still out on this one.
Photo of Health Professionals Sitting Around Operating Room with Alcoholic Beverages.
In another instance, we had a case where a surgeon and nurse took a picture together, in scrubs, in hospital‘s operating room, surrounded by empty beer cans and hanging all over each other. Although they thought the joke photograph would just be shared among a limited number of friends, it got widely distributed on the Internet.
The doctor was fairly well known in the local community and became much better known after this. The hospital initiated action against the physician and the nurse for using hospital equipment and property as they did. They were also referred to drug and alcohol evaluations just in case the events portrayed in the photograph were real.
Video of Students Singing Obscene Song.
In another case, a group of medical school students on the same clinical rotation filmed a rock music video while on-site at the health facility where they performed their rotation. The song had several obscene lyrics that the individuals sang and acted out. They were in scrubs or lab coats, and the institution’s name was showing in some scenes.
This video was supposed to be only for the group’s own limited amusement. However, someone saw it and posted it on YouTube, then TikTok. After about a million hits, the institution found out about it and took some harsh disciplinary action, reporting them and terminating them. Ouch! A whole career right down the drain!
First Amendment Rights?
Don’t you have rights under the First Amendment of the U.S. Constitution? You bet you do. You probably also have similar rights guaranteed to you under your state’s constitution, at least in most states.
However, you are also a professional with several professional duties and obligations that the regular old average man (or woman) does not have. You also have some very complex state and federal laws that govern what you may and may not do. You also have that pesky old Hippocratic Oath or Nightingale Pledge that you took (what does it state about being professional and keeping secrets?)
On top of that, if you work in a hospital or other medical institution, you will have that institution’s internal policies and procedures that you must know and contend with. Such internal policies may include, for example, a prohibition on participating in any such frivolous activities while on company time, prohibitions on using any of the employer’s equipment (including walls, desks, chairs, medical equipment, computers, telephones, lights, etc.) for anything other than the employer’s business, and prohibiting filming or photographing anywhere on the institution’s property without written permission.
Other Infamous Social Media Experiments and Appearance by Health Professionals:
The Emory University Hospital Nurses’ Rants.
In a 2022 video called “Labor and Delivery Icks” posted on TikTok, nurses mocked labor and delivery patients and complained about what annoyed them about the expecting mothers at the hospital. The video was viewed more than 100,000 times before being deleted. Emory University Hospital put out a statement saying it took appropriate actions with the former employees and that patients should never feel the way those nurses made patients think. The nurses were all fired.
Their reviews just weren’t that good, either. Much of the feedback and comments posted on the video were critical of the nurses and their behavior. Perhaps if the reviews had been better. . . .
Other Healthcare Professionals Recently Disciplined for Social Media Posts:
Columbia’s Chair of the Department of Psychiatry was suspended for racist, sexist tweets.
A Texas dental practice was fined $10,000 for HIPAA violations on Yelp.
Nursing home workers were fired for posting explicit photos of seniors on Snapchat, FaceBook, and Instagram.
Katie Duke, a nurse, social media influencer (unlike me), and advocate for medical creators, reportedly stated that she gets messages weekly from nurses across the country being fired for social media use in situations where the termination is felt unwarranted or too harsh.
Other Recently Reported “Banned Videos” by Health Professionals and Other Employees That Got Them Fired.
For some videos or media descriptions of videos (I know it just isn’t the same thing), see the many resources I have given below.
How Can I Exercise My Right to Free Speech Without Getting in Trouble?
So, how can I exercise my free speech rights without getting into trouble? The short answer is you may not be able to. No matter how innocuous your comments are in today’s culture, you will probably upset someone. And as soon as you identify yourself as a licensed health professional, someone will know how to get at you and how to cause you trouble.
Steps you should always take include:
1. Make sure you have good, comprehensive professional liability insurance covering you for licensure complaints, HIPAA privacy breach complaints and other similar complaints. BUY IT! IT’S CHEAP!
2. Always make sure that your employer is not identified anywhere. Remember lab coats, scrubs and name badges.
3. Never carry out such activities during a period of time when you are supposed to be working. Do it on your own time.
4. Never use any of your employer’s equipment, not even a stethoscope or scrubs.
5. Do not name your employer or even give enough information to allow its identification (e.g., don’t say “the biggest teaching hospital in Smithsville.”).
6. Never discuss or give out any patient information or medical information that may help someone identify a patient.
7. If you have a complaint about your working conditions or your employer, file it with the proper channels or quit! Don’t just sit around and gripe about it on the Internet. Employers don’t like disloyal complaining employees and almost all health care workers are “at will” employees.
8. If someone who is not the institution’s administrator or executive director asks you to be in a video, film or photograph, RUN! (unless, of course, you have your SAG/AFTRA actor’s guild card on you.)
9. If you are compelled to make such videos and post them online, be restrained, objective and professional in your comments, to the greatest degree possible. This one doesn’t apply if you have a podcast, are followed by millions and sell advertising for survival supplies, gold, and quack drugs making you millions of dollars.
10. Obtain, read, and be familiar with your hopsital’s or institution’s policy on patient privacy, privacy of medical information, HIPAA, photographing on its premises, and use of the employer’s equipment and supplies. (In fact, fold these up an place them in your coat pocket right next to the copy of the U.S. Constitution that I know you carry around.)
11. JUST DON’T DO IT! That is the surest way to stay out of trouble. (This rule does not apply to Doctor Oz, Dr. Phil or anyone else routinely making millions off of it. But then, they have their own full time public relations specialists, not like you.)
Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.
At the Health Law Firm, we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, home health agencies, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other healthcare provider. It also includes medical students, resident physicians, and fellows, as well as medical school professors and clinical staff. We represent health facilities, individuals, groups, and institutions in contracts, sales, mergers, and acquisitions. The lawyers of The Health Law Firm are experienced in complex litigation and both formal and informal administrative hearings. We also represent physicians accused of wrongdoing, patient complaints, and in Department of Health investigations.
To contact The Health Law Firm, please call our office at (407) 331-6620 or toll-free at (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.
Sources:
Reeves, Jackson. “Emory Hospital nurses no longer employed after viral TikTok mocking expecting mothers.” Alive. (12 December 2022)
Blevins, Jeffrey Layne.”Nurses Fired After Posting TikTok Video Disparaging Patients.” Relias Media. (1 February 2023)
Rella, Emily. “‘I Feel Like I’m Dead’: Woman Alleges She Was Fired From Walmart For Posting on TikTok.” Entrepreneur. (12 January 2023)(about a Florida Walmart employee who posted a TikTok vlogging her 13-hour shift; stated she worked 17 hours the day before and had worked at Walmart for 16 years; felt like she was dead; she was fired.)
Chen, Tanya. “Starbucks Fired a College Student For Posting Jokes On TikTok About Demanding Customers.” Buzzfeed News. (22 March 2021)(about a 19-year-old college student in Indiana fired by Starbucks for viral TikTok where there was a skit showing mocking customers orders, throwing drinks outside of the drive through window and fanning out money from the cash till. He was fired (but, on a positive note he is eligible for re-hire)).
Tenbarge, Ken. “4 Fresno Airport employees were fired after they filmed a viral video goofing around with airport equipment at the end of their shift.” Insider. (9 February 2020) https://www.insider.com/fresno-airport-workers-fired-making-viral-video-work-2020-2?utm_source=yahoo.com&utm_medium=referral (ramp service employees made a TikTok video dancing and using airport equipment as props and did it on company time; they were fired.)
“Wellstar tech ‘no longer an employee’ after posting video comparing vaccine mandate to Holocaust.” WSB-TV. (22 August 2021) (about a surgical tech posted a video comparing the hospital‘s vaccine mandate to the Holocaust.)
Brusie, Chaunie. “Nurses Fired For Mocking Child With Gunshot Wound on TikTok.” Nurse.org. (6 January 2023)(a TikTok was titled “Pediatric Nurse Icks” in which two Tennessee hospital pediatric nurses complained about an incident involving a pediatric patient who came in with a gunshot wound; one nurse talks about “when a kid comes in with a gunshot wound but then cries because we gotta stick `em for labs,” and the other nurse laughs; they be fired.)
Levine, Alexandra S. “Doctors and Nurses Are Becoming Internet Stars. Some Are Losing Their Jobs Over It.” Forbes. (21 December 2022) (A nurse for a private dermatology practice got away with posting content on social media for three years about skin care advice (like acne and anti-aging treatments) and makeup tutorials. In her videos she often urged viewers to consult dermatology providers to make safe, educated decisions. But, she did monetize her content through sponsorships with healthcare apparel and beauty brands. She seemed to have crossed the line when she offered virtual consultations and announced plans to launch a “skincare expert course”service. Her employer terminated her for allegedly breaching her noncompetition agreement.) However, she was allegedly so rich by that time that she didn’t need the job any longer.
About the Authors: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law; he is the President and Managing Partner of The Health Law Firm, which has a national practice. Hartley Brooks is a Law Clerk with the health law firm. Its main office is in Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.
Attorney Positions with The Health Law Firm. The Health Law Firm is always looking for qualified attorneys interested in health law practice. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: [email protected] or fax to: (407) 331-3030.
“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999. Copyright © 2023 The Health Law Firm. All rights reserved.
