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Clinical Advisor May 2011

A misstep online: when a blog hurts

BYLINE: Ann W. Latner, JD SECTION: FEATURE; Legal Advisor LENGTH: 1129 words

HIGHLIGHT: Navigating social media is especially tough for young professionals. Did a nursing[#x2028]student cross the line?

Twitter, Facebook, Myspace - everybody, it seems, is communicating with social media. Social networking via the Internet is a relatively new phenomenon that has radically changed how people communicate. These days, people regularly post comments about their job, vacation, friends and family online. While some of these postings are entertaining and informative, others are mundane and even crass. But when does a posting become a violation of someone else's privacy? Ms. A, aged 24 years, was a third-year nursing student at a large urban university. She was well-liked by her peers, who appreciated her frequently outlandish sense of humor, and she regularly posted blog entries on her personal Myspace page. One of Ms. A's classes was a childbearing course, which required each student to witness a live delivery. Ms. A was assigned to a pregnant woman who had signed a consent form agreeing to have Ms. A follow her through the birthing process. When the moment of truth arrived, Ms. A stayed at the hospital throughout the night and observed the birth of the patient's baby girl. After returning home, Ms. A posted the following entry online, entitled, "How I Witnessed the Miracle of Life." Other than its uplifting title, the content was distasteful. Ms. A proceeded to describe her experience watching the birth: "Last Friday, armed with a camera, I journeyed to the hospital, where I met my wonderful lady who was getting ready to pop. Since it was her third kid, everyone expected her to shoot it out within 30 minutes. She was already getting

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induced by an elephantine dose of oxytocin. I took my camera, put it on 'Record,' and assumed the position. Ninety minutes later, no baby. The anesthesiologist comes in and sets up my girl with an epidural. The doc took out this teeny needle first and numbed her up. Then she took out this huge 10-inch needle and jammed it into her spine! I was watching in horror, but I guess everything went fine, because my 'mom' was back into position in no time, waiting for the Creep to show up. Three hours later, no baby. I've got to go to work this evening, and I'm starting to cuss. I haven't slept in 36 hours, so I went to my car, got my blanket, came back in and went to sleep. Four hours later, she starts to throw up. I jump up, and turn my camera on again, assuming the position right in between her legs ... no baby. Seven hours later my eyes are starting to feel like they're filled with sand. The momma is throwing up, the daddy's stomach is growling and he's starting to b--ch like a 14-year-old schoolgirl in the mall. Eight hours later, the nurse comes in, checks the momma and says, 'Okay, we're ready to push.' FINALLY!!! I turn my camera on again. Two more nurses and a woman doctor come in. They put my momma into position, prop her up with pillows, and shine a bright light at the c--ch. At last my girl gave one big push and immediately out came a wrinkly, bluish creature, all Picasso-like and weird, ugly as hell, covered in God knows what, screeching and waving its tentacles in the air. Fifteen minutes later, it turned into a cute pink itty-bitty little baby girl. Mom was forgotten, the whole squawking family surrounded the new Creep; she was crowned with a pink cap, wrapped into a blanket and finally shut up with a t-t." With that Ms. A clicked "send" and posted her diary. The next day, the instructor heard the class whispering about it and decided to read the blog herself. Outraged, the instructor went to speak to the dean of the school. She was concerned that Ms. A had revealed confidential information about the birth mother and her baby. The dean reviewed the blog post and agreed that it violated the school's honor code and the confidentiality agreement all students had to sign before enrolling in the childbearing course. The confidentiality agreement stated: "I do hereby agree to consider confidential any and all information entrusted to me throughout my clinical rotations while a student at the School of Nursing. This includes medical, financial, personal, and employment related information. I realize that information shared with others could bring harm to clients. Further, I understand that a proven violation of confidentiality of any such information may be cause for immediate termination of access to further data and is grounds for immediate dismissal from the School of Nursing." The next day, Ms. A was called into the dean's office and confronted with a printout of her blog posting. She was told that it was a violation of the agreement and that she was being expelled from the school. Although Ms. A filed an appeal with the academic affairs committee, the committee ultimately decided to uphold the expulsion. On the advice of an attorney, Ms. A sued the school in federal court for infringing on her civil rights. Specifically, she argued that her dismissal from school based on something she'd written was a violation of her First Amendment right to free speech. Further, Ms. A claimed that the honor code was unconstitutionally broad and the confidentiality agreement, unconstitutionally vague. The school argued that Ms. A was dismissed from the program for defying her obligations as a student in a clinical setting. The court ultimately decided in favor of[#x2028]Ms. A and ruled that she should be reinstated because she had not provided any identifiable information about the birth mother or child and that her post, while arguably in poor taste, did not contain information that could possibly lead to the discovery of the birth mother's identity. Legal issue

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The court declined to view the constitutional elements of this case and instead focused on the facts, which were not in dispute. "This case will be decided on the merits," the judges wrote in their decision. "However, it will not be decided on constitutional grounds. A fundamental rule of judicial restraint requires that federal courts, prior to reaching any constitutional questions, must first consider any non-constitutional grounds for a decision." The court ultimately decided that the case was a contract matter rather than a constitutional case. Protecting yourself Had Ms. A lived in a small town with only one hospital, this episode might have ended in a different manner. In such a case, the information provided would probably have been enough to identify the patient and betray her confidentiality. In any case, great care must always be taken when sharing any information regarding patients - even without identifying them. While Ms. A's actions were not considered a breach of her school's honor code, they were certainly childish and set a poor example for one striving to work as a caring professional. Ms. Latner, a former criminal defense attorney, is a freelance medical writer in Port Washington, N.Y. LOAD-DATE: May 17, 2011 LANGUAGE: ENGLISH PUBLICATION-TYPE: Magazine JOURNAL-CODE: The Clinical Advisor

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