Blog at your own risk: Keeping online opinions anonymous can be tricky
■ Some physician-bloggers have found what you write can be used against you. But that doesn't mean you have to stop -- or never start.
By Pamela Lewis Dolan — Posted July 2, 2007
One physician-blogger referred to May 16, the day two popular medical blogs pulled the plug, as "Black Wednesday." One belonged to a physician blogging intimate details about his ongoing liability case. The other to an anonymous physician whose identity was discovered by a co-worker.
Since "Black Wednesday," some bloggers have been keeping a tally of physician blogs that are quietly shutting down as the issue of privacy has taken center stage. One blogger counted six gone.
"This whole day I've had this negativity going through me -- feeling sad, feeling scared (who will be next, me?), feeling defeated," wrote "Doctor Anonymous."
What Doctor Anonymous and other physician-bloggers are learning is that their Internet writings are not particularly anonymous and these online postings could put them at risk of violating patient privacy, angering colleagues or facing a malpractice lawsuit.
"Don't think about the person reading from thousands of miles away. If people in your community could read your blog and put the pieces together and guess, ... you should be concerned with a lawsuit," said Kate Borten, president of The Marblehead Group, a Massachusetts-based health care privacy and security consulting group.
But that doesn't mean doctors have to keep their virtual mouths shut. Bloggers and experts say there are benefits to physician blogs, and there are ways for physicians to raise their voices online without putting themselves at risk.
There are various opinions as to how much to divulge about the day-to-day operations of your practice, or how HIPAA affects blogging. But the recent shutdowns made clear that blogging in real time about your malpractice trial is not the best idea, and that if you are an employed doctor, you should first check with your employer, or see if there is policy regarding blogging.
A pediatrician known as Flea had gained an audience blogging about his practice, including interactions with patients. But he raised eyebrows when he began going behind the scenes in a malpractice case brought by the parents of a 12-year-old boy who died of complications from diabetes.
In an April 21 post titled "Why Flea Blogs," he wrote that the No. 4 reason was "Malpractice. There is such shame and stigma attached to being sued that we doctor-types find we can't even talk about our own malpractice cases amongst ourselves! Flea believes the folks ought to hear our stories."
And Flea told a lot of stories. About the jury preparation expert who taught him how to be interviewed by a hostile plaintiff's attorney. About the adviser who told him that 97% of a jury's decision is based on the doctor's character, and 3% on the facts. About how he used Google searches to find information on the plaintiff's attorney. He revealed his defense strategy and ridiculed the jury.
Then, Flea suddenly went quiet, and by May 16 he had taken down more than a year's worth of past posts. It all started two days earlier in Suffolk (Mass.) Superior Court.
The opposing counsel asked the physician sitting on the witness stand if he was, in fact, Flea. Pediatrician Robert P. Lindeman, MD, said he was.
The next morning, Dr. Lindeman settled his case for what the Boston Globe reported as a "substantial amount." The morning after, drfleablog.blogspot.com was no more.
Neither Dr. Lindeman, nor his attorney, Paul Greenberg, returned calls seeking comment for this story.
Some physician bloggers thought Dr. Lindeman got a raw deal, because his blog had nothing to do with the facts of the case. In fact, some lawyer-bloggers said it was likely the blog had little to do with the settlement, given five witnesses had been called before Dr. Lindeman.
But Eric Turkewitz, a New York plaintiff's attorney, wrote in his blog (link); that the plaintiff's attorney in Dr. Lindeman's case scoured Flea's blog for information that could be brought up in court.
Regardless, attorneys are using Dr. Lindeman's example to warn clients that blogging about your ongoing legal case is a terrible idea.
Blogging on the job might not be a good idea, either.
"Fat Doctor" often used her blog to vent about the practice where she was employed as a family physician. In her last entry on May 16, Fat Doctor wrote that an anonymous co-worker discovered her alter ego and sent a copy of her blog to her boss.
Even though Fat Doctor's boss told her what she did on her own time was her own business, she shut her blog down, in shock that someone would try to use it against her. It was resurrected on a new domain 11 days later, but several archived posts had been deleted.
"I went through and read every single post and deleted those in which the patients could possibly EVER recognize themselves," Fat Doctor wrote in an e-mail to AMNews.
By the time she resurrected the blog (link), Fat Doctor had left the clinic to take a job as a hospitalist. She wrote that she had been job-hunting since early January and had gotten the offer in early May, but felt guilty about leaving -- until her co-worker turned her in. "Now that I had an unnamed enemy, I stopped feeling guilty. At all."
Both the Flea and Fat Doctor cases had physician-bloggers scrambling to delete posts they thought might be troublesome, especially those relating to their patients.
Craig Hildreth, MD, an oncologist from St. Louis, said privacy concerns shouldn't keep doctors from blogging or from responding to patient blogs.
Dr. Hildreth writes the Cheerful Oncologist (link), and many of his patients are regular readers.
Dr. Hildreth said he routinely posts messages or sends e-mails to patients to pass along encouraging words without divulging protected information. He will often refer to patients in the context of an inspirational story. And while he has never created a fictional character, he always changes identifiable information such as sex, age or even the type of cancer.
Dmitriy Kruglyak, CEO of Trusted.MD Network, a health care blogging network, said he has not seen any examples of gross patient confidentiality breaches in physician blogs.
Dr. Hildreth says he started his blog as a way of releasing his pent-up sadness -- both as a doctor, a friend and a family member -- who watched patients and loved ones suffer and die. He found the writing to be cathartic and hears from readers who find it cathartic as well.
Some physician-bloggers say they have asked patients' permission to share their stories online, but will still change identifying features. But Borten says verbal consent is not enough.
HIPAA requires a signed authorization specific to how the information will be used, Borten said. The AMA's Council on Ethical and Judicial Affairs also advises physicians not to reveal patient communications and information without consent. Borten said authorization should detail precisely what is being written and that it's possible the story could live indefinitely online.
Attorney Diana McKenzie, partner and chair of the information technology law group at the Chicago law firm of Neal, Gerber and Eisenberg, said she often looks at the blogs of clients, but more for concern about malpractice liability than for HIPAA violations.
"Most folks understand privacy and HIPAA, but they don't understand how their statements can be used against them," McKenzie said.
For example, a physician may detail in his blog proper procedures for a specific type of case. But in a situation where a case may have been anything but ordinary and proper procedures may not have been followed, rightly or wrongly, the physician's comments of "always" doing something a certain way may come back to hurt him, McKenzie said.
"The problem is when one patient case doesn't go well, and their lawyer is smart enough to read the blog," McKenzie said. "It's not a good day in the courtroom."
Or, as Flea learned, for the future of your blog.