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Legal Services

By Dan Schulte, J.D.
MDA Legal Counsel
From the March 2012 issue of the Journal

Question: I want to re-do our practice website. I’d like to include more information about the quality of our services and fees, and also add a blog or chat room or something similar to communicate with patients about dentistry in general and their personal needs specifically. My partners are concerned about this new online activity. Are there legal risks I should be aware of prior to undertaking these website updates?

Answer: Websites have become necessary and very useful marketing tools. Virtually every business today has a website, and customers view websites as an essential part of researching the goods and services a business offers.

However, there are legal risks that should concern you when marketing and otherwise discussing dental care online. For example, you should be concerned about:

  • enhanced malpractice exposure if you provide professional advice online;
  • being deemed to be practicing without a license if out-of-state patients seek your advice online;
  • a greater possibility of false or misleading advertising claims and trademark and copyright violations; and
  • breaches of patient confidentiality.

There are a number of things you can do in connection with your website update to control this added liability exposure. First, make sure all advertising is true, complete and accurate. If you are an MDA member your advertising must also comply with the MDA/ADA Combined Codes of Ethics. All the same rules for print advertisements continue to apply online. Remember to regularly update your website, removing information that is no longer accurate or applicable. You may want to adopt a practice of dating the content on each page so that viewers know how old information is and are therefore in a position to make a judgment about whether it’s outdated or not.

Second, when including information that was not originated by you (for example, articles written by others, or photos) be sure to comply with copyright and trademark laws. These laws typically require the consent of these other parties to use their materials.

Third, do not engage in the practice of dentistry online unless you have been told by your malpractice insurer that you have coverage for claims arising from these online services. Great care should be taken to ensure that if you are practicing online your services meet the standard of care. A diagnosis that cannot be determined without a physical examination should not be given. Do not speculate with patients online what may or may not be the diagnosis. Instead, insist that the patient make an appointment so the exam can be conducted prior to giving a diagnosis.

Fourth, you should consult with an attorney prior to adding a blog, chat room, or other interactive area on your website. You will want to include disclaimers and terms of use that users of the website have to acknowledge prior to entering this type of area. Such disclaimers and terms of use would include language limiting the user’s ability to sue for information contained on your site, for advice given on the site, etc. In addition, for those users who are patients giving confidential dental record information you should strongly consider a “sign on” or “participation” agreement. Such an agreement would specifically put these users on notice regarding patient confidentiality and should require the patient to acknowledge that protecting the confidentiality of this information online is much more difficult.

You also should be aware that you are being exposed to potential liability arising from third party comments. For example, if patients post defamatory information or material about dentists or others you could be liable for “hosting” the defamatory information or materials. There are a couple of federal statues offering some protection (the Digital Millennium Copyright Act and the Communications Decency Act).  However, the immunity provided by these statutes to website hosts is not absolute. You will have to maintain a consistent practice of reviewing content posted by others and removing content that is inappropriate.

As you can see, today’s technology is great, but it is not without its legal risks. Take care that your online activities do not expose you to future problems.


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