Social Media and Common Sense

I recently spent some time preparing for a presentation regarding judicial professionalism and social media. I look forward to presenting the topic at the premier workers' compensation judicial college produced by the National Association of Workers' Compensation Judiciary this August. See Lyric Choices (July 2023). 

That post goes to some lengths to emphasize that much in the realm of behavior and words is governed by professional and ethical constraints, but the social media aspect is not the real issue. The speech or behavior is the issue. The social media merely facilitates it, eases engagement, and allows distribution. 

No sooner had that post published than the case of a plastic surgeon in Ohio reinforced those themes. The case involves social media, but that is no more the crux of her challenges than it was in the case of the rapping karaoke judge in Lyric Choices. In other words, it was not about how information was transmitted, but more that the information was transmitted. Yahoo News reported the Ohio story. 

The story is years in the making, and involves allegations against a plastic surgeon. Notably, there is a great deal of education required to become a plastic surgeon, much sacrifice and effort. The job pays well, with Zip Recruiter estimating the national average is about $400,000. Not a bad paycheck. 

This plastic surgeon decided to "livestream() some procedures on the social media app TikTok." Thus, while the patient was being worked on, a multitude of people could log in and watch. Before you think that is too weird, google Dr. Pimple Popper. This idea of watching procedures is not new. 

The Ohio Medical Board was asked to investigate the plastic surgeon's behavior. She was accused of making "major surgeries with potentially life-altering complications seem like one big party." The state alleged that her activity "Put patients in danger." The article reports that she was previously "cautioned" about patient privacy, and "sharing photos or video on social media." 

In those events, she had been "urged" to "undertake remedial education courses related to plastic surgery complications, professionalism, and ethics." The Medical Board asked for "certificates of completion of the courses," and wanted the doctor to summarize "what she learned and how she would apply it to her future practice." There was at least some indicia here of pushing the doctor to remediation and personal improvement. 

It is noteworthy that state licensing authorities in various professions are known to push education and strive for rehabilitation with professionals. The goal in many instances is on mitigating harm, training, and correction of deficiencies. There are times that the public perceives that as protection of the offending professional, but there is at least some merit in the idea of rehabilitation in many instances. 

Despite the remediation in this instance, the Medical Board "alleged (the doctor) continued to film and live broadcast medical procedures of some patients." There were apparently complaints by patients, and some perceived the doctor as less than sympathetic with those complaints. 

After months of investigation, following a license suspension in 2022, the Board "voted to permanently revoke the medical license" in July. It concluded that the doctor 

"neglected her patients as she livestreamed parts of their procedures, spoke into a camera, and answered viewer questions – all while the surgeries were taking place."

There might be an inclination to blame this on social media. But arguably could have been accomplished with a platform as simple as Zoom. It was not that this was social media. It was that the doctor was allowing distraction. It was that patient trust was compromised. It was the perceptions as to whether the procedures were afforded the dignity and respect that might be expected. The same challenges could have been raised with a "live studio audience," rather than social media. In the end, the social media made the headlines, but that "how" is not as important to the story as the "what," the harm to patients. 

The plastic surgeon of course disagreed with the Board decision. There were arguments made regarding the public benefits that might come through better interaction between doctors and the public. There was at least some admission that the videos could be perceived as "silly" and "unprofessional." But, in the end, the Board concluded the correct path was revocation of the authority to practice in Ohio. 

That does not mean that the doctor will not practice medicine. We live in a constitutional republic founded on the concept of Federalism. The licensure of physicians has federal implications (prescribing controlled substances), but much of the regulation is up to the states. 

Thus, there are perhaps other states that will welcome this plastic surgeon to treat patients. See What do you know about Medical Providers (February 2015). And perhaps there are states that would welcome her livestreaming those procedures. In the end, Ohio's decision is Ohio's and the appropriateness of behavior is largely local. 

That is an important reminder for the legal practitioner and judge as well. The rules of professional practice, and the Code of Judicial Conduct are likely similar from state to state. But, there are potentials for different requirements and definitions. There are potentials for different interpretations and perceptions. When the subject of ethics and professionalism arises, it is imperative that one focus on the particular jurisdiction. That said, there is much we might all learn about common sense, perception, and remediation that crosses state lines.