Many of us worry about how to handle disparaging comments or posts made by disgruntled patients about us or our office on the Internet. Although there are many ways to deal with this issue, or at least to try to deal with it, what if there was a way for it not to happen in the first place? Really? The answer might be to add a nondisparagement clause to your patient contract.
The United States Constitution gives all of us the right to freely enter into contracts as long as the contracts are not illegal, the parties to the contract enter into it freely, no party was coerced or manipulated into signing the contract by fraud or misrepresentation, and all parties have all the information necessary to know what they are getting themselves into; in other words, nothing is hidden from anyone. In addition, a contract cannot violate any public health or safety laws, or contravene the public welfare or the morals of society. Short of these constraints, we are free to contract for just about anything. It has been pointed out in jurisprudential literature that “Every person who is not from his peculiar condition under a disability is entitled to dispose of his property as he chooses; and whether his bargains are wise and discreet or profitable or unprofitable or otherwise are considerations not for courts of justice but for the party himself to deliberate upon” (Story J. Commentaries on equity jurisprudence. 14th ed. Boston: Little Brown; 1918. Volume 1, p. 337).
The elements of a legally enforceable contract are that there is an offer, that this offer is accepted, and that some consideration was paid for the bargained-for exchange. So, I agree to straighten your teeth (offer); in return, you agree to pay for my services (acceptance) the amount of $5000 (consideration). Suppose that I want to place in the contract that under no circumstances will the patient be permitted to malign or disparage me in any way on the Internet or in any other public media. Can I put that into the contract, and is it legal to do so? We are talking about inserting a nondisparagement clause into our patient contract or our truth-in-lending form. The following is an example of a nondisparagement clause.
In an effort to ensure that all public feedback or commentary regarding the orthodontic services provided by this office is both fair and honest, and to prevent the publishing of libelous content in any form, you agree that you will not, nor will you cause or cooperate with others to, publicly criticize, ridicule, disparage, or defame Dr Straightensem Goode, his professional corporation, employees, contractors, and associates, with or through any written or oral statements or images including, but not limited to, any statements made via Web sites, blogs, postings to the Internet, or e-mails, whether or not they are made in your name, anonymously, or with a pseudonym. You also agree to provide full cooperation and assistance in aiding this office or its representatives to investigate such statements if we reasonably believe that you are the source of the statements. The foregoing does not apply to statutorily privileged statements made to governmental or law-enforcement agencies, nor does it apply to statements made or testimony given during the course of any duly filed litigation in courts of competent jurisdiction between you and this office.
Sounds good, right? Well, a clause like this only goes so far because, left as it is, it is merely a paper tiger, something without any teeth. For this to have any meaning, any preventive moxie, you must have some kind of payment attached if your patient breaches the clause. You need a liquidated-damages provision. A liquidated-damages provision is an agreed-upon amount that reasonably reflects the damages that one might sustain if the other party breaches the nondisclosure clause.
In a personal-service profession, there is no way to know, with any certainty, just how badly your reputation would be harmed or how that would translate into lost income. Therefore, the first element required for a liquidated-damages provision to be found acceptable is that it must state that the parties agree that it would be difficult to determine the actual damages that would be suffered if the contemplated breach occurs. The second element is that both parties must acknowledge that the amount of the liquidated damages is a reasonable estimate of the actual damages that you would suffer if the nondisparagement clause were breached. It is often good to cite an example to support the amount and how it was determined. For instance, is it reasonable to assume that because of the negative posts in question, you could lose 20 patients during the upcoming year? If this is a fair statement, then at $5000 per patient, a fair and reasonable amount of liquidated damages for lost income from the negative posts would be $100,000. The third element of great importance is that both parties acknowledge that the amount in question is not a penalty but is merely an attempt to predetermine the damages that you might suffer. In addition, like many contracts, if a breach occurs, the breaching party must be offered a chance to cure the breach. In this case, it would be to remove the negative posts. Thus, many nondisparagement clauses will have a paragraph something along the lines of the following.
If you violate this clause, as determined by Dr Goode in his sole discretion, you will be given a 72-hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be indebted to Dr Goode for the amount of $100,000 for liquidated damages. Since actual damages would be difficult to determine as a result the disparagement, this agreed-upon amount represents a fair and reasonable estimate by the parties of the financial loss that negative posts will cause. This amount was determined to be a reasonable estimate by assuming that 20 patients during a year, at an average fee of $5000, will not seek treatment from Dr Goode as a result of the disparagement. This agreed-to amount is not deemed to be punitive but, rather, a fair representation of future damages. In addition, if you decide to litigate this matter and if you are found to be liable for having breached the nondisclosure agreement, you also agree to pay all of Dr Goode’s reasonable attorney’s fees as well as court costs relating to the litigation. If these charges remain unpaid for 30 calendar days from the billing date, your unpaid balance will be subject to collection and all other legal remedies available. In addition, the debt will be reported to all appropriate consumer credit reporting agencies until paid. Finally, the parties agree and acknowledge that this provision is a material term of the doctor-patient contract, the absence of which would have resulted in the refusing of treatment.
Commentary
Sounds good, right? I could give you a whole bunch of legal arguments both for and against the validity of such a clause, but if I really want to cut to the heart of the most viable argument against subjecting a patient to adhere to a clause like this, it would be because no extra consideration will be paid for acceptance of the offer. Many states require that if you bargain for anything over and above what is usually being bargained for, such as obtaining a specific result, an additional consideration must be paid. In other words, since the nondisparagement clause has nothing to do with the provision of orthodontic services, one could argue that the clause would be unenforceable because no additional consideration was paid for the patient to give up his right to trash my reputation.
So, how do we get around this? The answer is simple; provide consideration. In your contract, you state that in exchange for the patient signing the nondisparagement clause, you will reduce your fee by 5%, or $250. The bottom line here is how much is this peace of mind worth to you. How much are you willing to pay for not having to deal with this issue, and if you do have to deal with it, at least you are making an attempt to be well compensated for your anguish. Obviously, I’m saying that you must sit down with your attorney and your accountant and discuss what figures to plug in, but it is what it is—a way to deal with one reality of contemporary orthodontic practice. If the patients balk, and some will, and they want to know why you are doing this, and why they have to sign something like this, tell them the truth.
First, tell them that this kind of thing happens a lot these days. The Internet is like the Wild West of days gone by. There have been plenty of examples of vitriolic patients trashing a good doctor’s name over and over in various forums because they were upset with whatever. When this happens, there is little that the physician can do to counteract such postings. Tell your prospective patient that in general, if a patient is unhappy, he or she has plenty of recourse other than trashing the professional’s reputation. First, because you stand by the services you provide, you have been able to maintain a stellar reputation in the community. If patients think that they were wronged in some way, they should tell you, and you will try your best to make it right. lf they are still unhappy, they can go to the local dental society and engage in peer review. You are not doing anything to stop that. If that is still not good enough, they can always sue you; you are not preventing them from doing that, either. By the way (don’t tell the patient this), you have malpractice insurance to cover the last 2 situations. Tell them that the bottom line is that some patients are nut cases, and you must protect yourself from them. Of course, you will say that you don’t think that they are nut cases, but you don’t know who is and who isn’t, so your office policy is that everyone must sign in exchange for the discount. You have to be willing to say to the prospective patient that it is your office policy not to render treatment if the agreement is not signed.
If the patients still won’t sign, after you politely show them the door, and after you see them pull away from the office, pat yourself on the back. You have just saved yourself one massive problem. To paraphrase Johnnie Cochran: If they won’t sign, they will malign.
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