TikTok Takeover: Legal Considerations for Posting Healthcare Videos
Do you want to educate the public or promote your healthcare practice on TikTok? Before you post, keep these legal issues in mind.
Healthcare professionals are increasingly using TikTok to make short, often humorous videos that educate the public, answer questions, and demonstrate their service offerings. But it’s easy to throw caution to the wind in a format that’s so brief and where the drive to get views may undermine the creator’s responsibility to convey accurate information.
You’ve likely heard about some of the most egregious cases of licensed professionals violating codes of conduct on social media. For example, a North Carolina nurse was suspended after she posted videos suggesting she was harming her patients. But what about well-meaning videos that aim to educate and share expertise?
Even videos intended to be educational can lead to trouble. For instance, a Texas nurse posted a Facebook video about her first interaction with a patient who had measles, offering her takeaways from the experience from a nurse’s perspective. She did not mention the patient’s name or precise age.
However, she did reveal where she worked, the type of illness, the general age of the child, and how the child contracted measles. In revealing details that could help identify the patient, she violated HIPAA. As a result, the nurse faced a disciplinary order from the Texas Board of Nursing, which imposed a $500 fine, mandated additional educational courses, and limited the scope of her nursing license.
Tips for Compliant TikTok Content Creation.
Say you want to make TikToks while staying compliant. What should you consider?
Do your homework.
We live in a world of misinformation — don’t contribute to it! Unfortunately, it’s easy to get caught up in obtaining the most “likes” and views. Remember, you have ethical duties that prohibit you from spreading misinformation related to the profession. Thus, make sure the information you share is correct by doing your research and planning a “script” so you don’t get carried away and spread bad information.
Provide only information backed up by scientific evidence and your professional experience. And keep in mind that the science and standards of care change over time. So if new studies or advances in treatment no longer align with a video you posted, take it down.
Safeguard patients’ information and images.
On TikTok (or any social media platform), it’s best to speak about your experiences in general terms, avoiding disclosing any specific patient information. Remember, even if you don’t provide the patient’s name, simply revealing details about your location and the patient’s treatment plan could amount to a violation. The more detail you share about a specific patient interaction, the more likely you are violating either HIPAA or your state-specific privacy laws. The fines and penalties for privacy violations are steep and can cost you your job or practice.
However, some patients may be willing to appear in your marketing materials. For instance, you’ve likely seen many chiropractic and dermatology patients on TikTok. If you want to feature a patient, proceed cautiously. You should obtain written permission from the patient before creating the video and posting it to your TikTok. The written consent should address both state-specific privacy laws and federal requirements for releasing patient information.
Importantly, your consent form should include a section that addresses the sharing of biometric information (i.e., facial recognition technology). Several states, including California and Illinois, have stringent laws about the use of biometric information. If your consent form fails to address biometric information sufficiently, you may put your patients and your practice at serious risk.
Again, never use a patient’s information without their express written consent. Even if you obtain consent, proceed with caution.
Consider the risks of sharing your location.
If your goal is to bring potential patients to your business, you might opt to include your practice name. But revealing information about your facility brings risks. First, as in the Texas case, disclosing information that could identify a specific patient violates HIPAA. Second, millions of people could come across your videos. Identifying your workplace could give predators the means to track your movements.
Don’t inadvertently create a patient relationship.
Avoid getting too caught up in answering questions in your comment section. While occasionally, posting comments can help you clarify the information in your video, doing so can be a slippery slope. For instance, if individuals ask questions about their health, responding with treatment recommendations can inadvertently create a patient-provider relationship, bringing additional ethical responsibilities.
Include the necessary disclaimers.
Clearly warn your audience that your TikTok is for educational purposes only. The best practice is to use a well-crafted disclaimer specifically for your TikTok. Start by placing the disclaimer in your bio to ensure it is always available to users. You can set this by going to your profile, clicking “edit profile,” and entering the TikTok-specific disclaimer in the section for your bio.
But don’t rely on a disclaimer in your bio alone. Most of your TikTok audience will likely never visit your profile and, therefore, won’t see your bio. Instead, the algorithm serves them your content on their “For You” page. Thus, you should routinely ask yourself, “Is this video an educational tool that a viewer could mistake for personalized medical advice?” If the answer is “yes,” you should strongly consider using a few seconds of your video to clarify your credentials and explain that the video is for educational purposes only. That way, your disclaimers reach your audience.
Get legal help.
Do you need consent forms or a disclaimer for your TikTok account? Or are you already in hot water for creating practice-related content and posting it to your social media? An experienced healthcare attorney can address these matters. If you operate in one of the states where we have licensed attorneys, set up a free consultation to discuss how we can assist you.
This blog 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.