Before Sharing Online, Dentists Need to Brush Up on Privacy Law

Does your practice have written social media policies? According to the ADA, it should.

Digital communication can be a boon for businesses in a broad variety of sectors, but for dentists, embracing new technology can’t mean forgetting about old regulations.

Arthur W. Curley, managing shareholder and senior trial attorney at the law firm Bradley, Curley, Barrabee, and Kowalski, PC, in California, said HIPAA and other state and local privacy regulations can lead to significant liability for dentists and their practices.

Curley has represented dental practices for more than four decades and speaks regularly about legal issues for dentists, including privacy and digital communications. He’ll lead a presentation on this topic, among others, during October’s American Dental Association Annual Meeting in Hawaii.

“We have defended various claims and cases involving allegations of violations of HIPAA and federal and state confidentiality laws,” Curley told Dentist’s Money Digest. “In many cases the dentist or staff members did not know or appreciate their legal obligations as to digital communications.”

Curley said in response to such cases, various groups began seeking training from professional litigators. In his ADA session he will teach dental professionals what they need to know about privacy regulations, and give examples of previous cases and claims and how dentists can learn from them.

One of the most problematic forums for dental practices is social media. Such platforms make it easier than ever to connect with patients and bring in new clients, but it is also fraught with opportunities for missteps.

The American Dental Association recommends dental practices have written social media policies. The ADA notes that the policy should align with privacy and discrimination laws, as social media communication is not exempt from these regulations.

One common issue Curley faces is dentists who post about about their treatment results on social media and refer to specific patients, “without appreciating the definition of ‘protected’ identity and the HIPAA laws as to using any part of a patient encounter for marketing.”

Curley said social media liability is not just about what dentists or their staffs post; it’s also about what patients post. He said another issue he encounters regularly is dentists trying to counter negative online reviews.

He said dentists sometimes try to argue with patients when the patient leaves a negative review about their experience. The problem is that such arguments can become a trap -- in defending his or her work in a particular case, the dentist might accidentally reveal details covered by HIPAA.

“A patient does not waive their HIPAA rights to confidentiality by posting a comment about their dentist or dental hygienist,” Curley said.

Dentists also have limited legal recourse to counter a negative review.

“Online reviews are often protected free speech, particularly if they are opinion,” he said. “‘My dentist was rough with me,’ is an opinion and protected speech. Suing for defamation due to a posting on social media, can be risky to the unaware, due to SLAPP laws and firms that specialize in such cases.”

In addition to digital communications, Curley will also lead sessions at ADA on dental ethics, avoiding catastrophic claims from sedation complications, and employment law.

The ADA has published a guide on social media and employment. A link to the guide can be found here.