Can #DoctorsofTikTok Be Held Accountable?

By now, most people have heard of the social media app taking the world by storm–TikTok. TikTok is a free social media networking application that allows its users to create, watch, and share videos.¹ “The convenient mobile-native nature of TikTok, coupled with its creative lean and digestible bite-sized content are elements that have propelled the platform’s colossal success in recent times;”² it is a highly engaging, heavily subscribed, and exponentially growing social media platform.³ TikTok has around 524 million active users worldwide,⁴ and videos created on TikTok earn an average of 17 billion views every month.⁵

While TikTok’s average users consist of Millennials and Generation Z, professionals are joining the app and using it to provide TikTok users with free advice; doctors are using TikTok to share medical information.⁶ Whereas previously, one might have turned to Google for medical advice, Generation Z TikTok users respond well to medical information dances.⁷  Many of these educational TikToks have gone viral.⁸ #DoctorsofTikTok or #TikTokDocs are two hashtags used to conglomerate medical information on TikTok and have thousands of videos tagged.⁹

Along with every other user, professionals participate in the music and dance trends – but use these trends to educate their viewers.¹⁰ In one video, psychiatrist Melissa Shepard dances to the viral TikTok song “Choices” by E-40 while addressing common stigmas around people who self-harm.¹¹ Similarly, Dr. Staci Tanouye, an OB-GYN, lists what a healthy menstrual period should look like while dancing to “Baby One More Time” by Britney Spears.¹² Both Melissa and Dr. Tanouye, along with many other doctors on TikTok are board-certified physicians in their respective fields.¹³

The response to these videos has generally been positive. Dr. Rose Marie Leslie, a Family Medicine Resident Physician participating in #DoctorsofTikTok, says many users reach out to her after watching her videos to say that a video has inspired them to take more control over their health.¹⁴

While #DoctorsofTikTok comes with greater access to medical information, it also comes with the risk of disinformation, misleading information, and conspiracy theories.¹⁵ Further, TikTok’s emphasis on humorous content can make it hard to find the balance between educational and funny without being misleading.¹⁶ There have been groups of physicians and medical providers that have embraced TikTok as a new way to educate patients and break down barriers between the medical community and patients.¹⁷ There have also been critics in the medical field that feel TikTok is not an appropriate or professional method of communicating with patients.¹⁸

In a recent video, Dr. Leslie urges #DoctorsofTikTok to use their expertise appropriately and only make videos based on medical science; she hopes that #DoctorsofTikTok will hold each other accountable by sending direct messages to users who are not sharing correct or appropriate information.¹⁹ This begs two questions. First, can doctors be held accountable for the information they transmit on TikTok? Second, how can TikTok play a part in keeping information accurate?

Medical advice is a formal professional poinion regarding what a specific individual should do for their health. Typically, medial advice incolces giving a diagnosis and/or prescribing a treatment for a medical condition.²⁰ Medical information, on the other hand, is the relation of facts. Discussing facts and information is considered to be a form of protected free speech and is not considered medical advice.²¹ No exact line can be drawn to distinguish information from advice, but the context and content of the information can help distinguish the two.²² Generally, professionals who speak to groups (for example, giving a presentation) have been characterized as offering only general information.²³ While, on the other hand, professionals who answer fact-specific questions have been characterized as offering advice.²⁴

Medical advice is given in the context of a doctor-patient relationship and a licensed health care professional can be held legally liable for the advice given to a patient.²⁵ A doctor-patient relationship is generally established when a physician affirmatively acts in a patient’s case by examining, diagnosing, treating, or agreeing to do so.²⁶ One a physician consensusally enters into a relationship with a patient, a legal contract is formed and the physician owes a duty to that patient to continue to treat or properly terminate the relationship.²⁷ #DoctorsofTikTok should strive to, and should in fact, only give medical information and not fact-specific medical advice while posting on TikTok so as to avoid creating a doctor-patient relationship.

Even if  #DoctorsofTikTok solely participate in medical information rather than medical advice, a person is not legally permitted to provide medical advice without a license.²⁸ Doing so may lead to fines, possible jail time, or other forms of punishment.²⁹ Regulations are in place so that untrained and uneducated individuals are not treating others with potentially harmful methods.³⁰ All states have criminal offense charges for those who are practicing unauthorized medicine.³¹

However, it can be more difficult to attach legal charges to a person providing an opinion.³² To attach charges, and create the potential for legal problems, the information given “must be specific to the illness, injury, or ailment of the individual.”³³ So long as #DoctorsofTikTok do not engage with their comment section, it will be hard for an individual to hold a board-certified doctor using TikTok to disseminate medical information accountable for what they put out.

How can TikTok play a part in keeping information dispersed safe and accurate? They can provide board-certified #DoctorsofTikTok with a verified badge. Once an account is verified, it becomes officially endorsed by TikTok as a trusted-thought leader and provides that user with more credibility–ultimately improving the way others perceive the account.³⁴

By following only a few simple guidelines, #DoctorsofTikTok can ensure their community remains positive, trustworthy, and safe and can continue to reach new audiences and individuals who would not otherwise have easy access to medical providers.

Marah Fields is a Second Year Law Student at the Benjamin N. Cardozo School of Law and a Staff Editor at the Cardozo Arts & Entertainment Law Journal. Marah is interested in intellectual property and with her law degree hopes to help entrepreneurs learn to better manage their brands. You can follow Marah on LinkedIn here: https://www.linkedin.com/in/marah-fields-bb6275136/.

1. Frannie Ucciferri, Parent’s Ultimate Guide to TikTok, Common Sense Media, https://www.commonsensemedia.org/blog/parents-ultimate-guide-to-tiktok#What%20is%20TikTok? (last visited Mar. 7, 2021).
2. The Rapid Rise of TikTok, Digital Marketing Institute (Aug. 26, 2019), https://digitalmarketinginstitute.com/blog/the-rapid-rise-of-tiktok.
3. Id.
4. Id.
5. Id.
6. Ali Condon, Doctors are Using TikTok to Give Free Information and Advice to Teens, Extra.ie (Feb. 24, 2020), https://extra.ie/2020/02/24/tech/doctors-tiktok-information-advice-teens.
7. Annie Sidransky, “Dissolving This Wall”: Explooring the Medical Side of TikTok, Yale Daily News (Oct. 8, 2020), https://yaledailynews.com/blog/2020/10/08/dissolving-this-wall-exploring-the-medical-side-of-tiktok.
8. Rebecca Jennings, This Week in TikTok: When doctors and nurses go viral, Vox (Apr. 21, 2020), https://www.vox.com/the-goods/2020/4/21/21228378/tiktok-doctors-nurses-viral-videos
9. Laura Pitcher, Meet the #TikTokDocs Giving Professional Medical Advice Through Trap Music, Dazed Beauty (Feb. 26, 2020), https://www.dazeddigital.com/beauty/soul/article/48119/1/tiktok-doctors-medical-advice-social-media-tiktokdocs-education-awareness.
10. Condon, supra note 6.
11. Pitcher, supra note 7.
12. Id.
13. Id.
14. Id.
15. Martin Bureau, TikTok to warn users about sharing misleading content, NBC News (Feb. 3, 2021), https://www.nbcnews.com/tech/tech-news/tiktok-warn-users-about-sharing-misleading-content-n1256668.
16. Pitcher, supra note 7.
17. Shrai Popat, The Doctors and Lawyers Giving Advice on TikTok, BBC News (Feb. 17, 2020) https://www.bbc.com/news/av/world-us-canada-51507802.
18. Id.
19. Pitcher, supra note 7.
20. Dana McWay, Legal and Ethical Aspects of Health Information Management 164 (2014).
21. Id.
22. ABA Formal Op. 10-457 (August 5, 2010).
23. Id.
24. Id.
25. Id.
26. Valarie Blake, When is a Patient-Physician Relationship Established?, AMA Journal of Ethics (May 2012), https://journalofethics.ama-assn.org/article/when-patient-physician-relationship-established/2012-05.
27. Id.
28. How to Handle Claims of Practicing Medicine Without a License, hg.org, https://www.hg.org/legal-articles/how-to-handle-claims-of-practicing-medicine-without-a-license-44835 (last visited Mar. 7, 2021).
29. Id.
30. Id.
31. Id.
32. Id.
33. Id.
34. TikTok Verified Badge: Why you need it and how to get tt, Grow Mojo Marketing, https://growmojo.com/tiktok-verified-badge-why-you-need-it-and-how-to-get-it/.