Nursing Student Reinstated Because MySpace Blog Post Did Not Violate University Policies
September 15, 2009
Lindsay Dennis Swiger- Jacksonville
A federal district court recently ordered the reinstatement of a nursing school student who had been dismissed for violating the University of Louisville School of Nursing’s Honor Code and Confidentiality Agreement by posting a blog on her MySpace page that included patient information. After interpreting the Honor Code and Confidentiality Agreement, the Western District of Kentucky, in Yoder v. University of Louisville, No. 3:09-CV-205-S, 2009 WL 2406235 (W.D. Ky. Aug. 3, 2009), concluded that the student had not violated either policy because neither policy applied to a nonprofessional blog post that did not disclose the patient’s identity.
The Blog
Nina Yoder’s MySpace page blog post was based on her experience with an obstetric patient whom she was assigned to follow through the birthing process as part of her coursework. The post, which the Court characterized as “crass and uncouth,” described the patient’s labor in detail. In addition, the post provided the number of children the patient had, the date that she was in labor, her behaviors, the treatment she underwent, her reaction to labor and the reactions of her family. However, the post did not disclose the patient’s name, social security number, address, race, ethnicity, age, or employer.
The Nursing School administration learned of the blog post and believed that it violated the Nursing School’s Honor Code and the childbearing course’s Confidentiality Agreement. The Associate Dean of the Nursing School met with Yoder and explained that the blog post breached the Honor Code and patient confidentiality and that she would recommend Yoder’s dismissal to the Dean. Yoder was subsequently notified by letter that she was dismissed from the Nursing School for violating the Honor Code. The letter informed Yoder of her right to appeal the dismissal. Yoder filed a petition to appeal her dismissal, but her petition was denied.
Subsequently, Yoder filed a § 1983 civil rights action against the University of Louisville as well as the Dean and the Associate Dean of the Nursing School. Yoder alleged that the defendants violated her First Amendment right to free speech and her Fourteenth Amendment right to due process. The Court, however, recharacterized the dispute as one of contract interpretation and held that Yoder’s blog post did not violate the Honor Code or Confidentiality Agreement and ordered the University to reinstate Yoder.
University Policies Did Not Apply to Private, Nonprofessional Blog Post
The University argued that Yoder’s blog post violated the Nursing School’s Confidentiality Agreement and the “confidentiality” and “professionalism” provisions of the Honor Code because the blog post contained identifying information about the patient and was presented in a vulgar and unprofessional manner.
Addressing the confidentiality issue first, the Court looked to the language used in the Confidentiality Agreement and the confidentiality provision of the Honor Code to determine what type of information constituted “confidential information.” “Confidentiality” was not defined in the Honor Code, although the Confidentiality Agreement stated that “medical, financial, personal, and employment related information” was “confidential information.” The Court found that the information contained in Yoder’s post may have been “medical” or “personal” but that the post did not contain information that could possibly lead to the discovery of the patient’s identity. Therefore, the Court held that the post did not violate the confidentiality provision of the Honor Code or the Confidentiality Agreement because the post did not identify the patient.
Next, the Court reviewed the “professionalism” provision of the Honor Code to determine whether Yoder’s blog post violated the Honor Code. Again, “professionalism” was an undefined term in the Honor Code. Moreover, the Honor Code was limited by its own language to those times when the student was acting “as a representative of the School of Nursing.” As a result, the Court held that the blog post did not violate the professionalism provision of the Honor Code because Yoder had not posted the blog as a representative of the Nursing School and that the post was “nonprofessional” and fell outside the purview of the Honor Code. This conclusion was supported by the Court’s finding that the post was written without any clearly intended audience and was posted on Yoder’s personal MySpace page. The Court stated that if the Nursing School intended the professionalism provision to apply to the nonprofessional conduct of its students, it must clearly explain such an obligation.
This case highlights the importance of carefully drafting student policies and reviewing and revising those policies on a regular basis. One of the many topics to consider when revising student policies are the new ways in which students communicate and disseminate information. Once these are identified, student policies should be revised so that the policies remain an effective way to address the behavior that the policies are intended to discourage. Unambiguous, thorough and specific policies will lead to extinguishing, or at least limiting, liability.
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