Orthodontist Sued for Missing a Cancerous Lesion

Should Orthodontists Be Held Liable for Missing a Cancerous Lesion?

Lawsuits can strike fear in the hearts of dentists – not only for the costs involved, but for the damage they inflict on a dentist’s reputation that has taken a lifetime to build.

Where does liability end and common sense begin?

Recently the NY state court found that orthodontist Dr. Michael Donato was not negligent in the death of former patient Stephanie Hare. Ms. Hare’s family held Dr. Donato responsible for Stephanie’s death due to failing to detect a cancerous lesion during a December 2003 visit.

In April 2004, a lump was detected on her tongue by Dr. Donato, who ultimately referred her to an oral surgeon. But by then, the cancer was in its advanced stages. She died seven months later.

The family was seeking a $2.3 million award from Dr. Donato for pain and suffering.

The case pivoted around whether jurors would believe the cancerous lesion was present on Dec. 19, 2003 when Ms. Hare’s family said she complained of soreness to Dr. Donato; whether Dr. Donato should have found the lesion during a routine orthodontist examination; and whether he followed standard dental care during the exam.

“Stephanie’s death was not anybody’s fault,” Dr. Donato’s lawyer, Douglas Fitzmorris, told jurors in his summation. “Stephanie died of cancer. Dr. Donato is not to blame. The whole specter of this lesion being missed by Dr. Donato is not what happened. There was no deviation from accepted practice.”

And the jury agreed with Fitzmorris’ assessment of the case.

Should an orthodontist be held liable if he misses a cancerous legion? What if the patient’s complaints sound like issues stemming from braces and not cancer?

For more on this story, see Staten Island Advance.

Dental Marketing Gone Bad: Dentist Threatens Lawsuit for Negative Review

Dental Marketing Gone Bad: Dentist Threatens Lawsuit for Negative ReviewThe most costly dental marketing mistake could be threatening to sue your dental patients.  And once again, a dentist is making front-page news with her challenge against a negative dental review on Yelp.

ABC News is reporting that Stacy Makhnevich, DDS, threatened to sue dental patient Robert Allen Lee for posting critical comments about Dr. Makhnevich on Yelp and DoctorBase.

According to ABC News the problem began in 2010, when Robert Lee went into Dr. Makhnevich’s office for a scheduled dentist’s appointment. Lee claims he was in excruciating pain when he was told he had to sign a Mutual Agreement to Maintain Privacy form, before being treated. The privacy form required that Lee agree not to publish any commentary or write anything disparaging about his experience online.

Lee further states that although he was hesitant to sign this form, he was desperate to receive treatment and gave in to agreeing to sign the form.

Lee became unhappy when there was a mishap with billing his insurance company and he couldn’t get Dr. Makhnevich’s office to rectify the situation to his satisfaction, Lee wrote negative reviews about Dr. Makhnevich and her practice on Yelp and DoctorBase.

Both ABC News and Public Citizen are reporting that Makhnevich sent a letter to Lee demanding that he delete the negative posts, warning him that he violated the agreement he signed and threatened to sue him for breach of contract. Dr. Makhnevich also contacted the review sites and asked for Lee’s negative comments to be removed.

Both Yelp.com and DoctorBase refused to take down the negative reviews, but Makhneich reportedly claimed that a copyright clause gave her ownership of the negative comments. She then went on to send Lee an invoice for $100 for each day the negative remarks remained online.

Lee has now taken legal action against the doctor by filing a lawsuit in the US District Court of the Southern District of New York, accusing Stacy Makhnevich, DDS, of violating his rights as a patient by threatening him with a lawsuit for posting negative comments online.

As we have reported here on The Wealthy Dentist in the past, dentists have not been successful in court when suing patients directly for their negative online reviews. Recently in California a dentist who sued a patient now has to pay $80,000 in legal fees, not just to the patient who posted the review, but also to Yelp itself.

In the article, Dental Marketing: A Guide for Avoiding Negative Online Reviews, The Wealthy Dentist has offered dentists advice on how to handle a negative online review — and threatening to sue the patient was not listed as a viable dental marketing option.

What are your thoughts on negative online reviews and the sites that allow them?

For more on this story see: Dentist Threatens to Sue Patient for Negative Yelp Review and Doc Sued Over Attempts to Prohibit Patients From Writing Online Reviews.

Would BMI Sue Dentists for Playing Music During Dental Treatments?

Would BMI Sue Dentists for Playing Music During Dental Treatment?Last week in dental news, the EU’s top court ruled that dentists who have music playing during their surgeries should not pay royalties because they are not broadcasting to the public.

The ruling stems from a case brought against a Turin dentist by an Italian agency that collects music royalties.

They argued that the dentist was violating international agreements by broadcasting the copyright-protected works to the public during oral surgery, and as such were liable to pay royalties to the artists.

The European Court of Justice disagreed, citing that the dentist was not broadcasting music for profit and the audience was limited.

But is the same true for dentists here in the U.S.?

In the U.S. the laws covering music copyright are outlined in the 1976 Copyright Act, the Digital Performance Right in Sound Recordings Act (DPRSR) of 1995, the Digital Millennium Copyright Act (DMCA) of 1999, and the Copyright Term Extension Act containing the Fairness in Music Licensing Act (FMLA) of 1998. There also international agreements covering music under The Berne Convention.

When you play, perform, or record music that you did not create, you are often subject to certain copyright laws.

The few exceptions to copyright law fall under “public domain rights” where the composer has been dead for more than a certain number of years, or the copyright has expired. This is often the case for most classical and traditional music from all around the world.

However, the Fairness in Music Licensing Act of 1998, also known as the “Sony Bono Act,” (of Sony & Cher fame) adjusted the copyright concerning public domain rights to include works published in the U.S. in 1922 or earlier.  This law also allowed bars, restaurants, and cafes to play the radio and show television programing in the public domain, but not recorded music. There are also square-footage constraints and limits to the number of speakers used included in this change to public domain use.

Is this confusing or what?

The simplified version is if music or lyrics are created in the U.S. and fall under copyright protection, then a dentist (or anyone) cannot

  • make a imitative arrangement for public use in any form
  • reproduce the music or lyrics
  • perform the music or lyrics in public
  • distribute the music or lyrics for free — or for profit
  • play a recording of the music or lyrics in public (even if you own the CD or have purchased the song and downloaded it to your computer or phone)

Where does leave you, as U.S. dentist or your patients, want to listen to music during dental treatment?

In the U.S., the dentist performing dental treatment could technically play the radio, listen to the television (would you really want a TV on in the background while performing treatment?) or only play music that falls under the public domain rights as long as he or she is not performing the treatment in front of others or taping it for upload to the Internet for viewing.

The dentist could make a strong argument that listening to personal music from a CD, or iPhone with speakers during surgery does not constitute a public performance because the dental patient is possibly sedated, but would a dentist want to spend the time or the money involved to defend such a position if questioned?

And what if the music from the dentist’s sound system happens to be located in a dental practice location where sound easily travels next door to a space that is occupied by the public and does fall under music copyright restrictions?

These are the murky waters a business owner ventures into when using copyrighted music in a public space, even when that public space may only be occupied by a dentist, some dental staff and a partially or fully anesthetized dental patient.

The three major music rights management companies are BMI, ASCAP, and SESAC and they represent songwriter’s interests and help enforce songwriter’s performance rights. These companies issue public use licensing agreements and monitor businesses to uncover possible copyright infringement of their members’ songs and music.

They are famous for monitoring public spaces and sending cease and desist letters to small business owners.

The best procedure for dentists looking to play music at their dental practice (regardless of the situation) should be to pay licensing rights for copyright-protected music when used, or stick with music limited to use in the public domain.

It’s cheaper than paying an attorney in the future.

Appeals Court Says Yes to Dentist Lawsuit Against Patient for Online Review

court of appeals rules on negative online reviewsA new ruling by the 6th District Court of Appeals in California allows a dentist’s defamation lawsuit to move forward against a former patient who posted negative review of the doctor on Yelp.

In the same ruling, the court also concluded that the popular consumer review site Yelp is protected under the anti-SLAPP law, and Yelp can recover legal fees stemming from the doctor also suing Yelp over the same negative review.

Let the legal wrangling begin . . .

As reported in the Metropolitan News-Enterprise, the courtroom drama began back in 2009, when Yvonne Wong, a pediatric dentist from Foster City, California decided to sue Tai Jing and Jia Ma, who are parents of a boy she treated. The parents, unhappy with Sr. Wong’s treatment of their son allegedly posted a negative review about the doctor on the online review website Yelp.

The parent’s biting online review of Dr. Wong centered around the use of silver filings and laughing gas on their son, but the parents also wrote that Dr. Wong never warned that their son’s filing material could contain mercury and that other patients should “avoid her like a disease!”

Yelp gets involved . . .

After denying the parent’s claim Dr. Wong sued both the parents along with Yelp for what she felt was defamation of her character. She also wanted Yelp to remove the negative review.

She ultimately ended up withdrawing her lawsuit against Yelp after discovering that Yelp is protected under the Communications Decency Act, which bans recovery against websites for publishing third-party content.

Defendants Tai Jing and Jia Ma’s initial motion to strike down the dentist’s lawsuit was only successful in that the court allowed the case against Jia Ma to be dismissed, but ruled that Dr. Wong’s libel claim against Tai Jing could move forward.

Burden of proof on dentist . . .

The appellate court’s decision is important because it defines that the burden of proof in a defamation case and will set the tone for future lawsuits over negative online reviews. The burden of proof does not fall to the individuals accused of posting an online review to prove that they had not done so, but instead falls with the the plaintiff to prove who posted the review.

Some feel the doctor over-reacted and the publicity surrounding the lawsuit will be bad for her dental business, while others feel consumers need to stick to the facts and consider their words when posting a negative online review.

If you were Dr. Wong, how would you have handled an online review you felt was libelous? Is it bad PR for a dentist to sue a former patient over a negative online review?

For more information regarding this lawsuit, see How accurate is your Yelp review? and Court of Appeal Allows Dentist’s Libel Claim Based on Yelp Review.

Do Negative Online Reviews Really Matter To Dentists?

dentists negative online reviews While the idea of a negative online review strikes fear into the hearts of many dentists, others feel a good number of the negative reviews are bogus.

That’s because some dentists asked negative reviewers to contact them to discuss the matter, and heard nothing — or the dentist knew the alleged incident did not occur in their office.

The Wealthy Dentist decided to conduct a survey to ask dentists if they have experienced a negative online review and how they handled the situation. 64% of dentists responded that they have received a negative online review, with 31% saying they received more than one. Only 36% have not (yet) experienced a negative online review.

The slight majority (33%) received just one negative online review.

Here are some dentist comments:

  • “A staff member was able to find out who posted the review and they weren’t a patient. It was just someone posting negative things about businesses randomly.” (California dentist)
  • “I was listed on Yelp and I tried contacting the patients but they were fictitious or non-responsive.” (Massachusetts dentist)
  • “Not quite sure what to do- the patient hasn’t been to our office in 3-4 years and must have gotten some itch to slam us online.” (Michigan dentist)
  • “These reviews appear to be bogus. I have a small practice and many of the negative items mentioned do not even apply to me. Could be my ex-partner . . . I also wonder if it could be the reputation police.” (General dentist)
  • “Had to respond twice. We suspect the X-wife of my boyfriend! Just replied and asked other patients to do positive testimonials to counteract the negative one. Legal action was too expensive.” (California dentist)
  • “It was not a patient of record and the complaint made no sense, but it was taken down after 2 or 3 years.” (Oral Surgeon)
  • “It was on a neighborhood website. I contacted an attorney and then emailed the web admin and threatened to sue. They took the comments away immediately. I was surprised they did. The comments were completely ridiculous and it wasn’t like I could post photos of the patients’ cavities in retaliation due to HIPAA. I haven’t had any bad reviews on true internet sites like Yelp or Angie’s List or any of the others that I am aware of. I think it essentially gives the 10% (who are never satisfied) the megaphone.” (Georgia dentist)
  • “We tried to contact reviewer — to no avail.” (Florida Dentist)

Read more: Dentists Respond To Negative Online Reviews


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