Hygienist Steals Patients, Leaves Dentist with Huge Legal Bills
A Dentist's Patient List Is Not Protected, Rules Michigan Judge
"Any dentist who's considering purchasing a practice needs to know what happened to me," said Dr. Michigan. "My story has global ramifications."
I could hear an edge of exhaustion in the doctor's voice. Working seven days a week at two practices is clearly taking a toll. Though he's been practicing dentistry for over 30 years, this is the only way he's able to make ends meet.
It wasn't supposed to work out this way. Dr. Michigan had a solid plan. The practice he purchased was supposed to help pave the way for his eventual retirement. Instead, he got ripped off, and is now looking at close to $100,000 in legal bills.
He decided to purchase an established dental practice that was producing close to a million dollars annually. He wanted to protect the 1,000 or so names on the practice's patient list, so he had the previous dentist sign a standard non-competition agreement.
"Everyone tells you to have a non-competition clause with the dentist. No one had ever brought up the issue of staff, particularly hygienists," he sighed.
Along with the practice and patient list, Dr. Michigan also inherited several staff members. His relationship with Hygienist X seemed fine at first. He didn't mind when she picked up extra hygiene hours at another dental office. Even after she left to work full-time for the other dentist, he wasn't aware of any problems.
Dr. Michigan knew that production had slowed at his newly-purchased practice, but he didn't know why until he received a few anonymous phone tips from former employees of the practice where Hygienist X now worked. They had shocking news for Dr. Michigan.
While Hygienist X was still working at both practices, she stole Dr. Michigan’s patient list and brought it over to the other practice, and apparently proceeded to solicit away Dr. Michigan’s patients to the other practice. She even had the audacity to solicit a patient she was treating in Dr. Michigan’s office! This certainly explained the sharp drop in production he had suffered. He estimates she solicited away nearly 150 patients, costing him over a projected $1,000,000 in lost revenue over a five-year period, according to his consultant.
So Dr. Michigan immediately called his lawyer and started a lawsuit.
You'd think it would be a slam-dunk. In court, Hygienist X point-blank admitted under oath that she had taken Dr. Michigan's patient list.
Here's the unbelievable part: the judge threw the case out, ruling that the patient list was not covered under the Michigan Uniform Trade Secrets Act. The judge was in effect saying that a doctor's patient list is not protected information. (In a similar Pennsylvania case, the patient list was found to be a trade secret, but that's of little help to Dr. Michigan.)
So Dr. Michigan now finds himself working two jobs just to pay his legal bills. And, as you might expect, he is unhappy. "I wish I could offer you more than just sympathy," I told him, feeling helpless.
"You can share my story with other dentists," said Dr. Michigan. "Anyone who's buying a practice should work out terms with the staff, particularly anyone who has access to the computer, right off the bat. I'd recommend having every staff member sign a strongly worded confidentiality agreement, whether they stay or not."
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A Side Note on the Joys of Insurance Dr. Michigan's insurance company would not reimburse him for any of his losses. His Employee Theft and Dishonesty Policy would have given him a payout of up to $20,000 if Hygienist X had stolen equipment or furniture. But his patient list? Sorry, not covered! But it was a different story for the other dentist in the story. While Dr. Michigan spent a year's worth of his hard-earned money on legal expenses, the offending dentist's insurance company paid the bulk of his legal costs. |
Taking over an existing practice can leave a dentist exceptionally vulnerable. Patients who have known the hygiene staff for years are suddenly faced with a new doctor. The previous dentist often helps introduce the new dentist to the community, but the hygienists generally have closer personal relationships with patients.
I've heard stories of hygienists who leave after a new dentist purchases their practice, only to take out a big ad in the local newspaper announcing that the hygienist will now be seeing patients at another dental office just down the block.
But taking the patient list with you?!? That is shocking, appalling, and blatantly unethical theft. I'm frankly frightened by the possible ramifications of this Michigan ruling.
I would have expected a patient list to be covered by both the Trade Secrets Act and by the Health Insurance Portability and Accountability Act (HIPAA). But apparently not! And patients… Beware too!
Dentists: I want to know what you think of Dr. Michigan's story! Post your comments below. Plus, contact me if you'd like to get in touch with Dr. Michigan.
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September 24th, 2008 at 5:13 am
This story brings up the fact that even our own established practices can be at risk for the same reasons. Although I am confident with the ethics of my long term hygienist (and other employees), she could just easily solicit patients if she were to work in another office. I think that signing a confidentiality agreement with all empoloyees (front and back office) whether a new practice was purchased or not would be more than prudent.
September 24th, 2008 at 9:42 am
As an OM for more than 20yrs I thought I had heard it all. I am wondering if Dr. M filed a c/o with the MI dept of professional regs for an ethical violation against the RDH. If not he should. The judgement will forever be a defense. Every Dr. needs to find out what is considered a trade secret in their state and make it clear by contract what is confidencial in his office, also most software has a view only security setting available for select employees. Check your systems audit trail for print activity of your pt list frequently, and insist on one before you buy. Also was the Dr. she went to work for aware that she had stolen the list and used it to bring those pts with her, if he did he deserves what ever she does to him later.
September 24th, 2008 at 1:04 pm
It almost happened to me and I am a former Hyg turned dentist. My hyg , who had worked for me 20 years was retiring due to arthritis. She had worked for 20 years for the previous owner, so knew 3 generations of patients. She was old school and impossible to teach to RP, meaning I did all the perio or sent to periodontist. She requested the receptionist pull all the names and addresses and print for her. She was not good on the computer, fortuantely for me, and the Receptionist reported the request to me. I immediately locked her out of the computer and spoke to her about it. She had “hurt feelings” about the lack of trust, etc. and could not acknowledge the HIPPA violation of the addresses and data being taken out of the office. It was supposedly to send thank you’s to her patients when she left. She was having a hard time retiring, having no other life but the office. I did not trust her , since she had treathened to take the patients years ago during a disagreement early in the buy out. Yes, it can happen. I was able to stop it and now five years later, she has not even come back to the office for a visit.!!! One of the most stressful times of my whole career in dentistry. Where are the ethics lectures on this? Dr. Gray
September 24th, 2008 at 3:56 pm
This story, trial,AND the Hygienist’s name should be published in EVERY dental magazine in this country, including the ADA News! She is a THIEF!!
September 24th, 2008 at 5:12 pm
Not only does one need to worry about “printed” patient lists, but given the widespread use of those little USB thumb drives, it would be so easy for a computer litterate employee to simply copy your data to a drive for use later. Just reinforces the need for common sense security measures. While regulations will vary by state, some sort of contract/documentation with all employees is paramount to protect yourself and your patients.
September 28th, 2008 at 6:48 am
This individual ruined a lifetime of hard work for Dr. M. It is incomprehensible to me that this individual was not punished under the law, and her employer-dentist was not both punished and sanctioned by the dental society. Whether this theft is covered under Michigan law or not, a dentist that would condone such theft by an employee has NO ETHICS — something every medical practioner must have to call themselve a dentist or doctor. And the really sad thing is, every watchdog entity from the local newspaper on down seems afraid of “naming names,” probably for fear of a libel suit. I’m disgusted by the whole thing.
September 30th, 2008 at 7:47 pm
I just settled a case against a former employee/associate dentist who not only breached the non-competition covenant, but also took 4 key staff members and approx 170 patients when he opened a practice two blocks away. We had a solid Employment Contract that covered all of these issues, but this dentist with extremely low character, lack of morals and ethics, found a lawyer (money-grubber) who took his case and we spent lots of time and money pre-trial and finally settled. Caveat: you can have the best contracts, but that will not stop those with low moral character - it’s a risk that we all take. Getting an injunction is very difficult - most attorneys will not tell you about all of the pitfalls - I think most don’t know. Nothing is “ironclad.”