Physician and Provider Podcasts: Legal considerations

While a great way to market your practice’s name, brand, and showcase providers, think through these legal and compliance issues first.

Filming podcasts and sharing them on YouTube, or other social media sites, is becoming more popular among physicians and other health care providers. It’s a great way for a practice to market its name and brand and to showcase its providers.

However, it’s also important to think through any legal or compliance implications related to such marketing efforts before launching your podcast efforts:

1. What type of information is being shared with the audience?

To the extent a podcast is sharing what might be considered “medical advice”, it is essential that viewers be informed that the content is NOT intended to be considered medical advice. You certainly do not want patients assuming you are personally advising them, and providers need to be careful not to viewed as practicing outside their state of licensure. I encourage clients to add a written and a verbal disclaimer to be used at the start and end of every podcast. Alternatively, podcasts can simply be a more general discussion of medical issues without presenting anything that could be construed as “advice”.

2. Are you including photos/clips of patients in your videos?

Remember that to comply with HIPAA you always need to protect any protected health information (PHI) which includes pretty much everything about a patient. Filming in and around your office where PHI can be seen, or allowing actual patients to be on camera, can create a HIPAA violation. Make sure you check your studio/office space before filming to make sure there is no visible PHI and obtain patient authorization if they, or anything about them which is identifying in nature, will be seen on camera.

You may also be required to obtain additional legal consents that comply with state or federal laws, depending on what you are filming. When discussing specific patient situations or cases, be sure not to disclose information that could lead a viewer to determine who the patient might be. It’s often best to switch up some details, gender, timing, etc. in any story you share. Watch out for obvious clues that patients can pick up on to identify a patient.

3. Do you own the information being shared in your video?

If you are sharing charts, videos, photos, or other information in your presentation, be sure that you actually own or have a right to share it with others. Downloading something off the internet (even if it says it is free) does not mean you do not need a license to use it. It’s best to get permission in advance for any third-party materials or simply do not use anything created by a third party if you want to avoid this step. For ownership of your own videos, be sure to identify them as copyrighted by you or the practice (as the case may be) so they can be shared by others only with your permission.

4. Be careful not to disparage a third party.

When talking about a product, another provider, hospital, or other party, watch what you say. It is generally acceptable to express an opinion, but sharing false information in a factual manner can open you to a legal claim. For example, I had a client who stated in her popular podcast that “X” had history of making certain errors in a particular surgical procedure performed at a local surgery center. This statement was based on rumor and, in fact, was not proven to be true, but the assertion was believed by many viewers, resulting in a loss of business for “X” and a lawsuit against my client. The best policy is to speak generally and not to say anything negative about a specific third party.

5. Make sure you know what you are talking about.

Some providers get themselves into trouble when they venture out of their area of expertise and are called out as having shared wrong or false information, which can lead to the spread of misinformation and be embarrassing. This is the area in which patient complaints to medical boards can lead to physician investigation, depending on what has occurred.

6. Be careful selling products.

If you plan to hawk creams or other products during your podcast, make sure you are familiar with state law and other guidelines around those activities. There are also ethical guidelines (the AMA, for example) when promoting products to patients which are worth reviewing before you get started.

7. Check employer policies.

If you work for a practice or hospital, be sure you are aware of any rules or policies that apply to you before you create and share a podcast. Many employers have specific guidelines on ownership of intellectual property, use of social media, and other issues that could impact your podcast efforts. It’s better to check in advance!

8. Consider how you may deal with negative attention.

Depending on your platform, many podcasts offer an opportunity for the viewer to make comments. Unfortunately, this is ripe for disgruntled patients, former employees, et cetra to make negative comments, whether related to the podcast topic or not. Some people choose to respond to negative comments whereas others will ignore, but you should decide on an approach and always be careful of responding in a way that will not breach HIPAA (i.e. acknowledging someone is a patient).

Although people generally are allowed to express an opinion, flat-out lies or statements that disparage your practice can be actionable and, at the least, removed per the platform’s procedures. Plan ahead on how you intend to handle comments and the options available on the platform you choose to use.

Podcasts can be a great marketing approach, and patients love being able to see physicians and practices talking about specific medical issues in which they may be interested. With some simple safeguards, you can easily and safely promote yourself to patients and others.

About the Author

Ericka L. Adler, JD, LLM has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions, and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark Law, Anti-Kickback Statute, and HIPAA. Ericka has been writing for Physicians Practice since 2011.

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