Email and Social Media Disclaimers for Health Professionals

Does a disclaimer really do anything to protect you from liability? 

If you don’t already have one, you’ve seen one. Disclaimers are commonplace within email signature lines and are becoming more prevalent on social media. 

A disclaimer is a notice included as part of an email or social media post, distinct from the body of the message containing the substantive content. Usually, disclaimers attempt to address matters of confidentiality and liability. But why do they appear everywhere, and do they hold legal force? 

In most situations, the law doesn’t require email, website, or social media disclaimers. Further, using a disclaimer isn’t a foolproof way to insulate yourself from liability. However, they can be hugely beneficial reminders to those reading your messages or posts. And, if done correctly, they can limit your liability in certain situations.

Reasons to Use Disclaimers in Healthcare

A disclaimer’s protection will depend entirely on its language. Consider your practice’s specific needs and potential risks, why you’ve chosen the communication methods (e.g., email vs. EMR messages), and your legal obligations relating to confidential patient information and medical advice. 

So what are the most common reasons for using a disclaimer?

Patient and Audience Expectations 

A complex web of ethical and legal requirements governs healthcare providers’ communications with patients. Disclaimers can help clarify whether a patient-provider relationship truly exists. It can also address a provider’s duty to respond to an interaction. A social media disclaimer, for example, might assert that you have no obligation to respond to comments or direct messages. 

Disclaimers should fit the substance and medium of your communications. For instance, your emails may contain specific information based on patients’ health queries, while your social media accounts may feature more generalized educational and creative content. (Read more here about sharing content to TikTok and similar platforms.)  Your disclaimers need to account for these differences to set patient expectations and address the particularities of your practice and content.

Confidentiality

Healthcare providers exchange emails with patients and with other practitioners.  Those emails often contain highly sensitive patient information, thus implicating data privacy laws, medical privacy laws, and providers’ ethical obligations. And though the Health Insurance Portability and Accountability Act (HIPAA) does not require the use of email and social media disclaimers, it does require practices to assess their risk and take steps to comply with the law’s privacy, security, and breach notification requirements. A disclaimer can remind recipients that email is an inherently insecure communication tool and that they have other, more secure options. 

Read more: HIPAA Risk Assessments: Are They Really Necessary?

A disclaimer can also warn the recipient that the contents of the email are confidential. If either party breaches this confidentiality by sharing the email’s contents with a third party, the disclaimer can help the sender demonstrate that they didn’t intend for the email to be shared with others. 

The disclaimer can also tell the recipient what to do if the sender inadvertently addresses an email to the wrong person. This common error can undermine patient trust and cause major headaches for a practice. Thus, the practice might include a disclaimer stating that the contents of the email are intended to remain confidential, including by anyone who might mistakenly receive it. While not a cure-all, this can help to reduce the impact of an accidental breach.

Mistakes and Misstatements 

Emails sometimes include professional advice or representations. If the information within the email turns out to be incorrect, inaccurate, or harmful, it could trigger legal action. A well-drafted disclaimer may protect practices from such fallout.

The risks increase when a practice grows to include multiple providers, each with a unique communication style and risk tolerance. While the practice bears responsibility for its employees’ conduct, a disclaimer may help reduce liability for the organization as a whole if a provider sends a problematic message. But don’t neglect employee training on appropriate email communications. Such training can help prevent staff from sending improper emails in the first place. 

Read more: As an Employer, Am I Responsible for the Actions of My Licensed Workers?

Virus Protection

The news is rife with stories about ransomware attacks targeting healthcare practices. Without question, your practice should invest in robust virus and malware protection and consider purchasing cyber insurance. Unfortunately, no system is bulletproof. Moreover, even the most tech-savvy practices or employees can inadvertently download or forward viruses. An email disclaimer reminding recipients that they are responsible for scanning attachments before downloading could help limit your liability for damage caused by a virus that you passed along — or a resultant privacy breach. 

Copyright Protection 

Do you send emails that contain copyrighted content as part of your day-to-day business? If so, It may be prudent to notify recipients that copyright laws might apply and to specify what the recipient is authorized to do with the message. Hopefully, such a reminder will deter recipients from sharing your content in violation of the copyright. 

Get Legal Help

Healthcare professionals sometimes lift disclaimer language from many sources in an attempt to cover themselves from every direction. However, this “everything but the kitchen sink” approach can fail in two ways. 

First, disclaimers should include language specific to the practice, its obligations, and the professional’s personal risk tolerance. Second, including unnecessary information dilutes the message, rendering it less impactful to the recipient. While disclaimers can help demonstrate a healthcare professional’s good intentions after an incident, they are most effective when they shape the recipients’ understanding and behavior.

An experienced healthcare attorney can help draft disclaimers that fit your needs. If you practice in one of the states where we have licensed attorneys, set up a free consultation to learn more about how we can support your practice or healthcare-related business.  

This article is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.