“Click by” lawsuits based on violations of the Americans with Disability Act are being targeted at dental practices in increasing numbers. Learn what makes a website accessible, your role in compliance and how to reduce your risks.
Even the most skilled and seasoned dentists face professional liability claims. But how would you feel if a lawsuit were filed by someone who wasn’t a patient — or who hadn’t even driven past your office doors?
Litigation based on violations of the Americans with Disability Act (AwDA) has expanded to include not only physical barriers but also digital accessibility. In addition to “drive by” lawsuits focused on physical barriers to access issues, “click by” lawsuits are being filed, targeting office websites that are not accessible to those with hearing, vision or learning impairments.
Are dental practices at risk?
“Click-by lawsuits against dental offices have been on the rise for the past few years” said Mark R. Gibson, an attorney specializing in defense of healthcare providers. “Indeed, these website lawsuits tripled in volume between 2018 and 2020 and have been trending upward ever since.”
Gibson noted several reasons for the increase. “Recent legal precedents have made it easier for plaintiffs to sue even in the absence of a doctor-patient relationship. There’s the fact that liability can be based on a single minor technical violation and of course, the existence of significant financial incentives for plaintiffs and their attorneys.”
Most dentists and other small business owners earnestly want to comply with well-intentioned AwDA legislation; however, it continues to be exploited for financial gain by predatory plaintiffs.
What makes a website compliant?
It’s complex. For non-governmental organizations, there are no regulations that detail web content compliance standards. Businesses like dental offices, which fall under public accommodations requirements (Title II and Title III), must have websites that offer “reasonable accessibility” to people with disabilities. The courts generally refer to a set of industry standards — Web Content Accessibility Guidelines (WCAG) — which can be quite stringent.
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.
- Color contrast and text sizing to facilitate readability.
- Predictable page order and understandable navigation.
- Ability for users to avoid or correct input mistakes.
Why are dental offices being targeted?
Simply put, finding noncompliant websites and filing litigation is too easy due to several factors:
- Those looking to file suits for profit can browse through hundreds of websites from the comfort of their computers.
- Dentists aren’t expected to be web experts nor have web content that’s updated as often as e-commerce businesses, so their sites are less likely to be accessible.
- No prefiling notice is required; this means dentists don’t have the opportunity to make the changes needed to comply. Plaintiffs and their legal firms are often simply seeking payment — not fixes.
Minimum damages for a first offense are $4,000 and can multiply for every site revisit. In addition, a successful plaintiff can recover their attorney’s fees—which can run into the tens of thousands. You may have personal liability for these amounts if not covered by your business liability insurer.
Since these suits can come without warning, the best defense is to be proactive in auditing and regularly updating your website.
How can you reduce your risk?
The good news is you don’t have to be an expert in web accessibility standards or know how to code them. As a practice leader, your role is to ensure that the individuals or companies you hire to build or update your website are both aware of the accessibility standards and are working to ensure your website adheres to those requirements for compliance.
Your website developer should confirm that your site has been built to meet accessibility standards. However, after making a risk assessment based on the age of your site and the level of support available from your developer, you can choose to contract with an accessibility professional who can meticulously evaluate your site against WCAG and then provide a report of any issues found. More specifically, you should ensure that your website complies with WCAG Version 2.1, Level AA.
Your professional dental and business liability insurer or state dental association can also be good sources for referrals to trusted web design and assessment vendors.
Just by making yourself and your practice team more aware of the issue, you are in a better position to ask the right questions when it comes to your website and lessen the risk of being caught in a targeted search.
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:
- 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.
Again, the staff member doesn’t need to be an expert in content accessibility but can be supportive of the practice’s efforts to be attentive to its site, making it easier for patients to find the information they need and elevate any concerns.
What if a suit is filed against you?
While there are steps to take to mitigate your risks, you are never immune to the possibility of a demand letter or potential suit. But efforts to choose a vendor with a commitment to web accessibility or updating your site to be more compliant can reduce your chance of being targeted. And these efforts can facilitate an effective defense to the allegations and the dismissal of charges if a suit is filed.
Policyholders with strong liability coverage have the support of legal teams that can shine a light on plaintiffs’ predatory behaviors, like filing suits against multiple practices they never intended to visit or that aren’t in their region. As part of the claims process at The Dentists Insurance Company, for example, a web expert is deployed to audit the practice’s site in detail and deliver an actionable evaluation of what aspects are in and out of compliance. This analysis contributes to claim defensibility; more importantly, it demystifies what the dentist, in partnership with the web vendor, should do next.
Dentists are attuned and adaptable to meet the diverse needs of patients. While it’s unfortunate that a growing number of plaintiffs and their attorneys are leveraging AwDA compliance to pursue personal profit, the trend still underscores the need to make the physical and digital practice experience accessible and welcoming for patients with disabilities.
TDIC’s Risk Management Advice Line is a benefit to TDIC policyholders. To schedule a consultation with an experienced risk management analyst, visit tdicinsurance.com/RMconsult or call 1.877.269.8844.