More Trouble in Cyberspace

Social networking sites, such as Facebook, My Space, You Tube and Twitter continue to provide a source for new legal challenges and new applications of law. A Federal judge in Kentucky ordered the reinstatement of a University of Louisville nursing student who had posted a blog on MySpace recounting, in detail, the experiences of a patient giving birth. The nursing student included information about the date of the birth, the number of children the patient already had, the fact that she had an epidural and the reactions of her family. In addition, she described the newborn as “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”. The nursing student was subsequently dismissed from the University for violating patient confidentiality by providing sufficient personal information in her blog about the patient to enable the patient to be identified, and, in addition, for violating the principles of professionalism in the code of nursing.

The dismissed student argued that the University violated her First Amendment rights by dismissing her for the comments and information she posted in her blog. The student also argued that the University could not take the dismissal action because she was not using University technology to create her blog, she did not post the blog as a representative of the School of Nursing, and that she used the blog to create a “mixture of fiction and satire” as an emotional relief from the daily stress of her academic program.

We advise colleges and universities that students enrolled in professional programs who violate the standards and ethics of the profession may be disciplined if that expectation is clearly stated as a condition of enrollment in the program. Although the article does not address whether the nursing student had a due process hearing prior to her dismissal, the case was not presented as, nor decided as, a due process issue. Rather, the judge seemed to be substituting his opinion of the professional standards for that of the University by stating, “the post was not written in a professional medical context and thus fell outside the code of professionalism for nursing”. It seems to me that providing patient confidentiality, consistent with both ethical standards and HIPAA, is an across the board expectation for both students and professionals in the medical field, and not one confined to writing in a “medical context”.

This case raises concerns because of the judge’s involvement in the academic context, and the presumption that something posted on a personal blog protected the poster from being held accountable for violating legal and ethical standards of her profession. What do you think? Should she be disciplined? Dismissed from the program? Or is her comments protected by the First Amendment because of the vehicle for expression she used.

Regards,

Saunie Schuster