Physicians: Want Streaming Glory? Know These Legal Tips

A dermatologist talks on YouTube about sunscreens, retinols, tinea versicolor, and eczema. A plastic surgeon critiques the restorative work that celebrities have had. A urologist talks about supplements that can boost sexual performance. A gynecologist talks about menopause on TikTok.

Carolyn Buppert, MSN, JD

A physician has a podcast about performance, longevity, critical thinking, and pursuing excellence. Another gives tips for better sleep. Two clinicians discuss how to manage patients with angina.

The upsides of sharing expertise in a YouTube or TikTok video or in a podcast include educating the community, gaining recognition for one's expertise, attracting patients, making money from ad sales and sponsorships, and getting free stuff from manufacturers.

"Social media is your way of connecting the people you want to reach with good information… Social media is not the be all, end all. It is one arrow in your quiver, but it is a key arrow to use to achieve the triple aim of providing high-quality care to ensure population health at a reasonable cost," said attorney David Harlow in Best Doctors' "Physicians should be using social media: A legal perspective".

The AMA says: "Participating in social networking and other similar opportunities can support physicians' personal expression, enable individual physicians to have a professional presence online, foster collegiality and camaraderie within the profession, and provide opportunities to widely disseminate public health messages and other health communication." The AMA cautions that physicians maintaining a presence online should protect patient confidentiality and privacy and be mindful of boundaries, as one would in in-person medical practice. For more on the AMA's cautions, see Code of Medical Ethics Opinion 2.3.2.

There are three major legal considerations for physicians starting a YouTube channel or a podcast:

malpractice liability;
breach of patient confidentiality; and
disclosure of paid sponsorships and gifts for promotional purposes.

Avoiding Malpractice

First, it is important to understand what malpractice is. A lawsuit for malpractice is successful when a patient proves these four elements:

The clinician owed the patient a duty of care.
The clinician breached the standard of care.
The patient suffered an injury.
The patient's injury was caused by the clinician's mistake.

Duty. A duty of care is established when there is a physician-patient relationship. When a physician visits with a patient in office or in a hospital, there is a physician-patient relationship and a duty of care ensues.

However, there need not be an office visit to establish duty. Duty of care can be established by a telephone conversation or even a casual discussion with someone who has never registered as a patient. If a physician gives an individual professional advice or treats the patient, in any setting, a duty may be established if the individual relies on the clinician's advice, to their detriment.

But it is the physician who gets to decide who is a patient. People can't just decide that a physician on YouTube or TikTok is their personal physician. One way to avoid misunderstandings is to post a disclaimer on the website of the podcast or YouTube, cautioning that the physician is providing general education, not giving medical advice to individuals, and that each listener must have their own physician provide an evaluation and prescribe treatment. It is wise to repeat this statement verbally during the video or podcast.

Physicians can avoid confusion by not making "you" statements when providing information. For example, say, "Patients with hidradenitis often find that oral retinoids are helpful" rather than "You might try oral retinoids."

Standard of care. Standard of care is defined as follows: A physician is duty-bound to use such care, skill, and diligence as would a reasonably prudent physician in good standing in the same general type of practice in a similar factual situation.

What if a physician makes a mistake online? For example, let's say a physician talked about possible treatments for a specific condition but missed one that is standard. That physician may not have met the standard of care in omitting a standard treatment. But again, the physician who has stated that they are providing general education is not treating an individual. What is more likely than a lawsuit is a harsh comment from another physician, pointing out the error. A listener who thought their life was affected by the physician's omission would have a hard time making a case that the physician on YouTube was liable for malpractice. While the medical information wasn't complete, it wasn't advice for a specific patient.

Cause of injury. If a physician in a podcast or on a YouTube video avoids giving advice to an individual, it is unlikely that a judge or jury would find that an error made in a statement on a podcast caused an injury to a patient. Of course, physicians don't want to make errors in their presentations in podcasts or on YouTube because it damages their credibility. The thing to keep in mind is this: Provide general education, not medical advice for a specific individual. Don't take on individual cases in a podcast or on YouTube.

In short, it's not malpractice to make a mistake; malpractice is when there was a duty of care to a specific individual, the physician made a mistake, and the mistake caused an injury.

Maintaining Patient Confidentiality

Federal and state laws protect patients from providers disseminating their personal health information. These laws are generally referred to as HIPAA (Health Insurance Portability and Accountability Act of 1996). HIPAA violations are punishable by fines and also may result in an encumbered medical license.

Because a physician on YouTube or in a podcast shouldn't be treating individuals online, there shouldn't be a problem with violating a patient's privacy. However, there are several ways clinicians can get into trouble. Here are some dos and don'ts that can prevent legal problems:

Fictionalize patients: It's fine to present a hypothetical case, but make sure that the identifying details about the patient aren't the details of a real patient. Even when the patient details are fictionalized, a listener (perhaps even a real patient of that physician) may think the story is about them. So, if you are telling a story about a patient, state that the details have been changed to protect patient privacy.

Don't use a photograph or video of a patient, or any part of a patient, without the patient's written permission to use the image for the purpose of your YouTube video. If you do have permission, state that. It is safest to decline to use any images of patients. However, a photo of a toe would be safer, privacy-wise, than a photo of a face.
Don't get into a conversation in the comments. An individual can, in the comments, disclose personal information about himself, but once a physician enters into a dialogue online, privacy can be violated. Physicians can provide contact information through the channel's page, and individuals who want to discuss their situation can communicate offline.

Making Disclosures

Some companies contract with YouTubers or podcasters to promote the company's product. Some companies give YouTubers or podcasters free products, hoping the content provider will like the product and influence listeners to make a purchase.

Physicians can engage in sponsor deals with companies and can accept free stuff. However, listeners have a right to know that a podcaster or YouTuber is being paid to promote a product.

The Federal Trade Commission (FTC) has guidelines which require YouTubers to disclose who they are working with when they post sponsored content. The FTC says: "If YouTubers participate in a brand deal, product placement or receive a free gift, they must clearly disclose it to their viewers within the video's description."

So, physicians, like others, must disclose verbally or in writing on the episode's page or the video that they are being compensated for a promotion and/or that they have received free products through companies that hope they will promote the products.

How do the laws that prohibit physicians from referring to entities with which they have a financial relationship apply, if at all, to physicians on social media?

Under federal anti-kickback laws, there are criminal penalties for individuals or entities that knowingly and willfully solicit or receive anything of value in order to induce the referral of business reimbursable by a federal healthcare program. The laws were enacted because Congress believed that payments tied to physicians' referrals increase the likelihood of overutilization of items and services, increase the cost of healthcare programs, lead to inappropriate referrals, and make competition unfair. The Stark laws have the same goal: to prevent physicians from referring patients to hospitals or other business entities in which they have a financial stake.

Inherent in the Stark and anti-kickback laws is the assumption that physicians have influence over their patients. If a physician refers a patient to a medical equipment company, the patient is likely to take the physician's advice. Sometimes, physicians make out referrals to a specific business, and then the patient doesn't have much choice. But when a physician recommends a product over social media, the physician doesn't have anywhere near as much influence as when the patient and physician interact during an office visit. One could argue that Congress, when it enacted the Stark and anti-kickback laws, wasn't contemplating physicians recommending products on social media. And, importantly, the Stark and anti-kickback laws prohibit inducing referrals of "business reimbursable by a federal healthcare program."

Many products that a YouTuber would promote aren't reimbursable by Medicare or Medicaid. However, physicians on social medial who promote products should be aware that any deals they make could be subject to a Stark or anti-kickback analysis. While promotion of sunscreen isn't likely to be a problem, it might be a problem if a hospital pays a physician to promote the hospital.

Bottom line: Physicians on social media should not take money or anything of value in return for directing listeners to a product or service covered by Medicare, Medicaid, or any other federal program. While I know of no cases where this has been an issue, it's better to avoid getting anywhere close to a Stark or anti-kickback violation.

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