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?
There’s a rising wave of litigation based on violations of the Americans with Disability Act (AwDA). In addition to “drive by” lawsuits grounded in physical barriers to access, “click by” lawsuits are being filed in increasing numbers. Plaintiffs target office websites that are not accessible to those with hearing, vision or learning impairments.
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 nongovernmental organizations, there are no regulations that detail web content compliance standards. Businesses like dental offices, which fall under public accommodations requirements (Title I 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 nontext 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.
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. And plaintiffs and their legal firms are often simply seeking payment — not fixes.
“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.”
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.
“Since these suits can come without warning, the best defense is to be proactive in auditing and regularly updating your website,” Sparks said.
How can you reduce your risks?
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.
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.
And 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, make 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 800.733.0633. For Risk Management guidance in Idaho, Oregon or Washington, call 800.452.0504.