Health Care Providers and Social Media: Too Risky?

By: J. Richard Moore
BleekeDillonCrandall Attorneys

A recent article published on socialmediatoday.com suggests that unlike other professional industries, health care providers have been slow to engage on social media. The article posits that the key reasons for their reluctance stem from concerns about accountability and privacy. At its root, the issue seems to be that between the protections afforded under the Health Insurance Portability and Accountability Act (HIPAA) and more generalized notions of physician-patient confidentiality, many providers are concerned that a presence in social media threatens patient confidentiality and exposes them to expanded liability. The article makes the point that a lack of social media presence is itself risky for health care providers, and argues that the risk of not establishing a presence subjects providers to potentially negative commentary and characterization.

The risks to physicians, hospitals and similar providers posed by interaction on social media are analogous to a large extent to those faced by lawyers, a group which in my experience has fairly enthusiastically embraced social media, and opportunities for professional on-line communication and networking. Like physicians, lawyers are bound by client confidentiality. We are also bound by rules of professional conduct that regulate what we are permitted to communicate about our services and our experience. This does (or should) cause us to be cautious and deliberative when engaging social media, particularly when we do so under color of our profession and/or our firm. Notwithstanding these restrictions, lawyers have been active in social media for many years.

On the other hand, health care providers have to be concerned about additional scrutiny that we lawyers do not. This includes state and federal oversight associated with Medicare and Medicaid, as well as board licensure review. Health care providers also face heightened attention and expectations of accountability when there is a bad patient outcome. Providers may be understandably leery of engaging in yet another form of exposure and communication in which there is certainly opportunity for “bad press.” However, as the socialmediatoday.com article suggests, media silence can be detrimental both from a financial point of view and in the arena of public opinion. Even social media silence.

http://socialmediatoday.com/node/452497&utm_source=feedburner_twitter&utm_medium=twitter&utm_campaign=autotweets

How Good Lawyers Get Fired

By: Jim Bleeke
BleekeDillonCrandall Attorneys

Over the past three years, I have had five different cases transferred to me in mid-stream from five different law firms. In addition, several new clients come to our firm because they were dissatisfied with their previous lawyers. While I am always grateful for the opportunity to assist existing clients with troubling cases or to work with new clients, I never look forward to the initial conversation with the lawyer from whom a case is being transferred. (To the credit of the attorneys whom have transferred cases to me, they have always done so professionally and they always have been courteous and helpful to me.) When I mention to my partners or other good friends who are attorneys the names of the lawyers from whom these cases have been transferred, I often get a puzzled look and a comment of, “Wow, that person is a really good lawyer. I wonder why the client transferred the case.” I have even had the transferring attorney ask me why I thought the case had been transferred from them. These situations beg the question “How do good lawyers get fired?”

In my experience, the decision to transfer a case away from an attorney rarely has to do with the attorney’s trial skills or intellectual legal abilities. Instead, from listening to clients and reviewing the files after they have been transferred, the reason for the cases being transferred almost always boils down to one basic problem¬—the failure to truly know what the client wants.

Specifically, the failure to know and deliver what the client wants normally falls into three categories. The cases or new clients that have been reassigned to our firm result from the following:

1. Failure to understand and embrace the client’s reporting requirements that are necessary for the client to make timely evaluations and reserving decisions on their cases;

2. Failure to understand and embrace the client’s attitude toward settlement versus trial and particularly prior to a scheduled mediation;

3. Failure to fully realize that the client, not the lawyer, should be deciding if and when a case will settle and which cases the client truly wants to defend through trial.

In my experience, even highly skilled lawyers, with excellent trial abilities, can fail to recognize what is truly important to the client. Often those lawyers are extremely busy and believe that their greatest priority is preparing the best possible legal defense in each case, and that the clients and the people managing the litigation will just have to understand the demands on the trial attorney’s time and how the client’s expectations cannot always be met. However, clients tend not to see the world that way.

During the ten years I spent as in-house counsel at a medical malpractice insurer, the lawyers that I truly appreciated most were the ones who could prepare excellent defenses and still provide me with the information I needed to evaluate cases and make decisions on which cases to try and which ones to settle. Those lawyers were every bit as busy as the lawyers who did not provide timely reports, or who complained about having to try cases that they thought they might lose. When we had to transfer cases from one lawyer to another, we always sent the transferred cases to the lawyers who we KNEW would provide us with timely evaluations and give us the information we needed to make the crucial decisions.

I look forward to hearing an excellent discussion of these types of issues at the upcoming DRI Medical Liability and Health Care Law Seminar, March 8-9, 2012, in New Orleans. Stan Starnes, currently CEO of a very successful medical malpractice insurer, and previously an outstanding trial lawyer for many many years, will be speaking on Representation of Health Care Providers: Expectations and Opportunities. I cannot think of any lawyer more qualified to talk about these issues from the perspective of both the trial lawyer and the client than someone with Stan’s outstanding trial skills and experience and his intimate knowledge of what it takes to successfully manage many challenging cases across the country. (In addition, I always look forward to socializing with my many good friends and colleagues who are involved with DRI’s many excellent medical liability programs.)