Liability Lifeline - Volume 2

Liability

Vol. 2 2021

Website compliance Establishing your online presence with confidence while managing legal risks continued on page 2

IN THIS ISSUE Creating a visual story through patient and staff photos 8 Online reviews: Mitigating defamatory patient reviews 11

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We live in a digital world in which building a strong online presence is essential to growing our businesses.

However, establishing your online brand and navigating how to build your website, use patient photos or share testimonials, can often be challenging. Just like your dental practice, your site must be accessible to new and existing patients, and there are steps you can take to best represent your practice and minimize legal risks.

The following considerations can guide you in optimizing your web content and boosting your online presence with confidence.

Mindful web development Your website is the face of your dental office’s brand, and it’s often where potential patients receive their first impression of your practice, your staff and your treatment philosophy. Beyond that, it creates an interconnectedness between your current patients and practice information, changes or updates. Practice owners may be unaware of the many aspects that go into designing a website to ensure it is visually appealing, reflects the culture

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of the dental office, serves the patients’ needs and protects the practice from potential liabilities.

When looking into building a new website or updating an existing site, how do you decide when to do it yourself or hire a professional? There are pros and cons that come with either path. To help inform your decision, first determine what kind of site best fits your specific business needs.

Building a website on your own To simply showcase your office, a brochure-style site may work best. The purpose of a brochure site is to give your practice a credible online presence and offer new, existing and potential patients a place to find key information such as the practice’s hours of operation, contact information, services offered, specialties and dental team credentials.

If this is your goal, a website builder offers an easy and cost-effective way create a web presence. These tools allow a user to create a drag-and-drop website more quickly through predesigned

themes, making them a great option for people who don’t have much or any experience in web development. In just a few clicks, users can upload images, videos and text and have a functional website. Using a credible website builder also gives you the flexibility of updating your website whenever you need to.

One of the pitfalls of using a website builder is that users are limited to how much they can customize the templates to fit their desired style. Also, using predesigned templates can take away from the uniqueness of your site. Some platforms also make it difficult to transfer the site to another provider should you wish to make a switch in the future.

Additionally, adding extra features on the site, such as mailing list integration or online scheduling, may cost extra.

Hiring professional help If you want to use your website as a marketing tool to attract new patients or use it as a place for existing patients to book appointments or find other services, it would be best to hire a professional.

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“If someone is just looking for a digital business card, they can do something on their own that’s quick and budget friendly, but if they’re serious about marketing the practice, it would be good to hire a professional,” said Cory Roletto, co-founder and partner of WEO Media, a full-service dental marketing agency.

The upside of hiring a professional web developer is that the website will be fully customized to fit the style and business needs of your dental office.

Hiring a professional also allows you to work with someone who can provide expert guidance and someone who will address the technical details, such as which hosting company to use and registering a domain.

When hiring a web developer, it’s important to work with someone who has the prior experience to meet your business needs. Once you’ve found someone, work with the developer to create a design process that works best for the both of you. How would you like to give and receive feedback? How much of the web development process you would like to be involved in? Your design process should also include a protocol for web updates to ensure any changes to the site are approved by you first.

Once the website is up, the web developer can analyze the site’s performance and make recommendations on how to optimize the web content to increase the amount of people visiting the site and help convert those visitors into patients.

These options do come at a price.

A professionally built website can be expensive, and the amount of custom work and the complexity of the site could increase the amount of time it

takes for the developer to complete the site and get it published.

Another consideration when hiring a professional is that some developers may limit your access and restrict you from making edits to the site, meaning any changes could only made by the developer.

The bottom line is considering your needs for the site and the amount of time and money you are willing to invest, but remember this is an investment of your practice, your dental team and an opportunity to reach patients and prospective patients through an online presence.

Regardless of which option you choose, it’s essential that your website is compliant, accessible and designed in a mindful way that protects your practice from potential risks.

Reasonable accessibility The Americans with Disabilities Act requires certain businesses to make accommodations for people with disabilities. The act is often associated with accommodations that are at the physical site of the business, such as wheelchair accessibility, but the AwDA also requires businesses to ensure their web content is accessible to all users. By adding specific site features, you can better accommodate users who are visually or hearing impaired and those who must navigate them by voice, screen readers or other assistive technologies.

Ensure your site offers “reasonable accessibility” for people with disabilities or you could become the target of a discrimination lawsuit.

Dental practices are covered by the AwDA and fall under the category

of “public accommodation,” which means practice owners are required to comply with the AwDA legislation and should implement the Web Content Accessibility Guidelines on their offices’ websites.

These criteria include, but are not limited to: • Alternative text for images and non-text content.

• Video closed captioning for the hearing impaired.

• Proper structure to work with screen reader technology.

• Colors, contrast and text sizing to facilitate readability.

• Predictable page order and understandable navigation.

• Ability for users to avoid or correct input mistakes.

In 2013, there were fewer than 4,000 federal AwDA lawsuits. By 2020, there were more than 10,000.

Making your web content accessible If you’re hiring a professional web developer to build your site, ensure they are aware of the accessibility standards and are working to ensure your website meets the requirements. If you’re building your website yourself, your professional dental and business liability insurer or state dental association can be good sources for referrals to reliable web assessment vendors. continued on page 4

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A claim handled by The Dentists Insurance Company illustrates the need to check website compliance with AwDA guidelines. A dentist was sued for unlawful discrimination by a man who claimed that he was completely deaf and accused the dental office of preventing him from fully and equally accessing video content on the practice’s website.

The plaintiff claimed that he was a prospective patient and was looking for information about the dental office online. According to the lawsuit, the website offered videos of patient reviews intended to attract new patients, but the plaintiff was unable to access the content fully and equally because it lacked closed captioning for the audio.

The plaintiff alleges that his inability to access the video content caused him “difficulty and discomfort” and deterred him from pursuing oral health services with the dental office.

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The dentist confirmed that the plaintiff was not a patient of record and had never scheduled an appointment with the dental office. The plaintiff claimed that although he was not a patient, he was visiting the website to potentially seek out services from the dental office. He also revealed that his visit to the office’s website was made in part in the capacity of a tester — someone who visits a public accommodation with the intent of establishing whether the public accommodation discriminates against people with disabilities. The AwDA allows for “tester” litigation.

“The majority of the claims we handle come in as first-notice lawsuits,” said Monica Sparks, a claims representative at The Dentists Insurance Company. “Plaintiffs are targeting dental offices for profit, not because they have any intention of becoming patients, so they’re not

incentivized to give the office an opportunity to address the accessibility issue.”

There’s been an influx of federal lawsuits and demand letters for violations to the Web Content Accessibility Guidelines over the last seven years. In 2013, there were fewer than 4,000 federal AwDA lawsuits. By 2020, there were more than 10,000, according to JD Supra, an online litigation news publication.

Minimum damages for a first offense are $4,000 or $4,500 and can multiply for every site revisit — as much as $25,000 to $30,000 in legal fees or mediation if not covered by your dental business liability insurer.

In this case, the dental office’s website was found to be noncompliant as alleged and TDIC was able to work with the plaintiff’s attorney to settle the case.

“Since these suits can come without warning, the best defense is to be proactive in auditing and regularly updating your website,” Sparks said.

Maintaining your website Keeping your website up to date is a key aspect in making sure your site complies with AwDA legislation and is a reliable source for patients to find information about your practice.

As best practice, it is recommended that businesses update their websites every few years or whenever there is a significant change in staff, services or practice hours.

“If it’s been two to four years since you’ve updated your website, then you should take serious consideration into redesigning your site and making sure everything is up to date,” said Roletto.

Regular website updates also help with Google search engine (SEO) rankings. This means if your website is regularly updated, you’ll have a better chance of showing up in a Google search when a person searches for a dentist in your area.

Plaintiffs are targeting dental offices for profit, not because they have intentions to become patients.

A best practice is to designate a staff member to review the website at least once a quarter or at the time of any practice transitions to ensure:

Top three website elements that convert web visitors into patients 1. Patient testimonials

2. Calls to action

Patient testimonials speak to your commitment as a dentist to provide to quality care Whether it’s a short video or a written review, it’s best to let people hear directly from your patients about their satisfaction with your practice and the service they receive.

Including patient testimonials showcases your skills as a dentist while also building trust with potential patients.

Driving traffic to your website is only the first step to attracting new patients. Once a new visitor has landed on your site, it’s important to have clear calls to action to guide them through their next steps.

Actions such as “schedule an appointment” or “contact our office” can help boost engagement and encourage people to follow through.

• All hyperlinks are active and accurate.

• Practice information is current.

• Staff listings are up to date.

• Content is a true reflection of the practice.

• Any inactive sites or pages have been taken down.

Creating a digital footprint for your dental practice doesn’t have to be complex, but it should be a thorough process that showcases the authenticity of your practice to build trust among patients while complying with federal web content standards to accommodate the needs of visitors and providing relevant information and resources to ensure your patients have a seamless experience during their next visit to your dental office.

3. Visible contact information Your site visitors shouldn’t have to go on a scavenger hunt to find your practice’s contact information. This information should be the first thing your visitors see and should be featured prominently across all webpages and should be clearly visible when your site is viewed on mobile devices. Take things a step further by adding clickable links to your phone number and email so that site visitors are only one click away from contacting you.

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NEW RISK MANAGEMENT SEMINAR

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Upon seminar completion, you’ll better understand: • • • •

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Understand the role of good communication, documentation, patient selection and case management in lessening risk. Plus, earn 3.0 ADA CERP credits upon course completion.* See details and register at tdicinsurance.com/seminars.

* Important information about your 5% Professional Liability premium discount: TDIC policyholders who complete a seminar or eLearning option will receive a twoyear, 5% Professional Liability premium discount effective their next policy renewal. To obtain the two-year, 5% Professional Liability premium discount, Arizona, California and Nevada dentists must successfully complete the seminar by April 23, 2021. Alaska, Hawaii, Illinois, Minnesota, New Jersey, North Dakota and Pennsylvania dentists must successfully complete the seminar by October 29, 2021. Any eLearning tests received after the deadline will not be eligible for the discount. Non-policyholders who complete a seminar or eLearning option and are accepted for TDIC coverage will also be eligible for this discount.

Protecting dentists. It’s all we do.

®

800.733.0633 | tdicinsurance.com | Insurance Lic. #0652783 @TDICinsurance

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Creating a visual story through patient and staff photos Your online imagery is a powerful tool that sets the tone for your brand and can boost patient engagement.

Adding visual elements to your website is your opportunity to set yourself apart from the competition by showcasing the quality of your work and offering patients a glimpse into the unique culture of your dental office.

When it comes to choosing images for your website, it’s best to forego stock images and pursue an authentic approach that reflects the quality of care your office provides. Using real photos makes it easier for potential patients to connect with the staff and ensures that the content for your site is unique. Dental procedures are a personal service, and your patients want to be able to trust you, but it can be difficult to build that connection through stock imagery or without images of the dental team.

Consider hiring a professional photographer to take pictures of the interior and exterior of the office as well as the team. Using real pictures of your dental office and staff not only adds genuineness to your website, but you also avoid the risk of copyright infringement that you could face when using pictures from the internet without securing the appropriate licenses through a purchase.

It’s best to schedule the photoshoot outside of business hours and work with your staff to coordinate outfits for group photos. If you would like to use photos of yourself providing care, coordinate 8

with a patient ahead of time to schedule their appointment on the day of the photoshoot.

Patients want to be able to trust you, but it can be hard to build a good connection through stock imagery.

But, the first step to curating personalized pictures of your patients or staff is getting their consent. Without their consent, you could be facing claims of unauthorized use of their image and potentially responsible for resulting damages such as emotional distress or violation of their privacy.

Obtaining photography consent Patient photos not only speak to your skills as a dentist, but they also provide a reference and educational platform for new and existing patients.

While including patient photos and testimonials on the website can be beneficial, the regulations that govern how health care professionals should use patient photos can be complex.

If the patient agrees to participate in a photo or video shoot, document the patient’s permission by having them sign an image release form. This not

only serves as proof that the patient granted the dental office permission to post their photo, but it also protects the dental office from potentially violating HIPAA restrictions by posting the patient’s photo online.

When asking a patient to use their likeness in a photo or video, explain in clear terms the purpose of the picture and how it will be used. Did the patient consent to allowing you to use their photos on your website and social media channels or did they only agree to using them in a portfolio for you to show to other patients? These types of guidelines should be clearly covered in the image release form. You should also make it clear to the patient that they are free to decline consent to use their photos.

A case reported to The Dentists Insurance Company’s Risk Management Advice Line emphasizes the importance of getting a patient’s consent in writing. In this case, a dentist had completed a full-mouth reconstruction on a patient. The patient was initially happy with the results and gave the dentist verbal permission to use her before and after pictures on the practice’s website.

A few weeks later, the patient became critical of the treatment.

The dentist made several attempts to address the patient’s concerns but was unable to meet her expectations.

The patient hired an attorney who sent a letter to the dentist alleging that

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The do’s and don’ts of using images on your website DO use authentic photos of patients and staff members on your website.

DO obtain written permission before using photos of patients or staff. he used her pictures on the practice’s website without her permission. The dentist removed the patient’s pictures from his website immediately and contacted TDIC. With the assistance from the assigned claims representative, they were able to negotiate and reach a settlement and the case was closed.

Laws governing the use of patient photos vary state by state, and it is best to consult with your attorney or insurance carrier to ensure you’re protecting yourself for any situation they may arise.

Refer to TDIC’s sample image release form for guidance on how to draft an image release form specific to your dental office.

Do the same rules apply to the dental team? The answer is yes. Whether they’re professional photos or just fun team pictures, your staff will more than likely end up in photos that will

be used on the website or on social media. To protect your practice and your employees’ rights, it’s best to ask all team members to sign an image release form if it’s not already included in the onboarding process.

As best practice, you or your web designer should update your website’s photos whenever there’s been a change to the dental staff or every two to three years when you do your routine website audit and update.

The visual content on your website can easily compromise your practice’s brand if you use stock images or pictures of your patients and staff without consent. As you’re building or redesigning your website, take the time to plan your visual story to best showcase your office, team and your patients while also protecting your practice.

DO approve all photos before publishing if you’ve hired someone else to build the site.

DON’T use pictures of patients or staff for any purposes other than what is documented in signed image release forms.

DON’T use pictures from online image libraries without obtaining a license or proof of a license.

DON’T use pictures of products or trademarked words or symbols without written permission.

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CYBER SUITE LIABILIT Y

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Protecting dentists. It’s all we do.

®

800.733.0633 | tdicinsurance.com | CA Insurance Lic. #0652783 @TDICinsurance

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Online reviews: Mitigating defamatory patient reviews Creating and maintaining a strong web presence for your dental practice not only increases brand awareness, but it also provides a platform for satisfied patients to do some of the marketing for you. Patient reviews play an instrumental role in helping practice owners build trust and confidence and are often the factor that drives a potential patient to call and schedule an appointment.

But patient reviews can sometimes be a double-edged sword. Even with your best efforts, you won’t always be able to satisfy every patient who comes into your practice, and there could come a time when a patient decides to leave a negative or defamatory online review that could hurt the credibility of your practice.

When faced with a negative review, it’s best to keep your responses short and professional. First, offer to handle the matter offline by asking the reviewer to call or stop by the dental office to further discuss their complaint.

You should also state that your response is not confirming or denying that the reviewer is a patient of your practice.

This shows you are concerned and not ignoring their complaint.

You should also refrain from disclosing any of the patient’s personal information or details about their situation in question — even if the patient has already included this information in their review. You could inadvertently breach patient confidentiality, such as revealing a

patient’s health condition, or make a defamatory statement in return.

But what if a patient leaves a review that’s false or defamatory?

The Dentists Insurance Company strongly advises against refuting the claim or responding in a defensive or confrontational manner.

In a case reported to TDIC’s Risk Management Advice Line, a patient who posted a negative review online had also asked at least 10 of her friends, none of whom were patients of the practice, to post negative reviews. In total, the patient and her friends posted about 80 negative reviews within 24 hours. The Advice Line analyst advised the dentist to contact the patient directly to address her concerns leading up to the negative review and request that they remove their comments.

If you believe you have received an unfair or inaccurate review from

a patient, you can use these steps to create a plan of action to address defamatory reviews online: • Check if the website has a written policy or protocol for removal of the postings and follow the process to request removal of the information.

• Research and determine who may have posted the negative comment and then review the patient’s file to determine if you have information that may corroborate your rebuttal or contradict the patient’s claim.

• Seek legal advice to determine what options are available to mitigate the problem.

Take a proactive approach to minimize negative reviews by maintaining a clear line of communication with patients. Ensure your services, expertise and protocols align with their oral health goals.

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Liability Lifeline is published by: The Dentists Insurance Company 1201 K Street, 17th Floor Sacramento, California 95814

©2021, The Dentists Insurance Company

Endorsed by: Alaska Dental Society California Dental Association Hawaii Dental Association Idaho State Dental Association Illinois State Dental Society Nevada Dental Association New Jersey Dental Association Oregon Dental Association Washington State Dental Association Also in: Arizona, Minnesota, Montana, North Dakota, Pennsylvania and Tennessee

TDIC reports information from sources considered reliable but cannot guarantee its accuracy.

Need one-on-one risk management guidance?

• Get answers to your critical questions through a confidential phone consultation with an experienced TDIC risk management analyst.

• Request a consultation at a time that’s convenient for you at tdicinsurance.com/RMconsult or by calling 800.733.0633.

Protecting dentists. It’s all we do.

®

Risk Management Advice Line | 800.733.0633 | tdicinsurance.com

@TDICinsurance