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Social Media and Professional Practice Donald E. Machen, DMD, MSD, MD, JD, MBA, CFA; and Hollie A. Bernstein Machen, Esq.

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Throughout the past several years, a significant number of orthodontists have contacted us about the use of social media networking and requested assistance with problems that have occurred. As a risk management protocol, having a business plan subsection devoted to both the positive aspects of these opportunities and a checklist of procedures when things go wrong, is a sound and prudent way to approach this.

Our experience with this has enabled us to prepare a list of suggestions that might save you a great deal of time and mental anguish. If the worst-case scenario occurs, the suggestions contained within this article might save your practice and your financial future. The horror stories of our consulting clients should be carefully considered before embarking on a campaign to market and establish a public relations effort via social media.

Background
Worldwide, there are more than a half billion users of MySpace, Facebook, Twitter, LinkedIn and the other social networks, with approximately 40 percent of those in the United States, or roughly 200 million. The opportunities are unlimited. However, so are the potential problems that can be caused by disgruntled employees, patients and even jealous competitors. According to experts, social networking is and will continue to be the most influential and efficient manner with which to interact with the current and next generation.

Protecting Your Valuable Reputation
You've heard the terms "goodwill" and "intangible assets." In valuing an orthodontic or other professional practice, a large portion of the value is often allocated to one or both of these categories. Imagine for a moment the precipitous drop in value if a barrage of negative comments is circulated through various social media portals. The speed at which this destructive and harmful information can go viral is astounding. For this and other reasons, a plan should be in place for both the appropriate strategic use of and tactical methods by which to handle any of these untoward occurrences. Just as you would handle an untoward consequence of a treatment plan, the orthodontist and his or her team, including advisors, must be ready to take action at the first sign of problems related to negative comments through any social networking outlet.

An example might help you to understand the scope and magnitude of the potential problems that can occur.

An orthodontist with a large practice, starting approximately 300 patients per year, with a staff of 14, notices a drastic decline in new patient appointments. In addition, a number of scheduled new patient visits are cancelling. Along with these issues, calls are being received for records to be transferred to other orthodontists. After some review and contact with several individuals who are leaving, it is determined that someone sent e-mails to patients, referring dental offices and scheduled patients with both disparaging remarks and a link to a Web site with unflattering articles about the practice and the orthodontist.

What Action Should You Take?
The following protocols are suggested to incorporate into your practice business and marketing plan in order to be as alert and proactive as possible. By being alert and proactive you might be able to avoid such situations altogether; but if they occur, you will also be ready to move on them immediately. Left alone, in a very short time, an orthodontic practice could be destroyed by the actions of a vindictive present or former employee or patient, or regrettably, a former associate or competitor.

Developing Your Plan

1. Due Diligence
A trusted and time-tested employee, a carefully selected consulting service that you retain, or you should regularly search the Internet under your name and the practice name. All major search engines (including, but not limited to, Google, Yahoo, AskJeeves, AOL Search, Wikipedia, MSN Search, Digg, BX, Bing, etc.) should be scoured. Additionally, the popular dentist and doctor-patient review Web sites (such as Dr. Oogle, Dentistreview, Vimo, etc.) need to be searched. We suggest you read up on risk management and reputation perception, including improving patient care, reducing lawsuits and increasing referrals. If you need direction in risk management, read our book Managing Risk in Orthodontic Practice.

2. Prevention
All patient information must be securely maintained, not only for compliance with confidentiality and privacy requirements, but also to limit access and be able to identify access to your vital and valuable patient computer records. In this regard, each employee must sign an employment contract (for new employees) and an addendum for current employees specifying their prohibition of use of confidential and private information, except as you specifically authorize. Specific language should reflect the obligations and responsibilities and what might happen in the event the policies are violated.

3. Action Plan
If you identify someone who has initiated a negative campaign against you or your practice, the following is a suggested plan of action:
  1. Determine the extent of the dispersion and damage; identify the Web site(s) that are hosting this material or the offender by a quick search on www.whois.com or a similar site. This is a free service and is one of the quickest means to identify the provider and IP address of those hosting the disparaging material. On occasion, the person is computer/Internet savvy and you might need similar computer expertise or consultants to "reverse engineer" an e-mail, or a forensic specialist to assist you with these searches. Be prepared because it is much easier, quicker and less costly if you have arranged for this in advance. These methodologies will identify the perpetrator. As a legal matter, any person who would submit or disperse a malicious attack, especially if done so anonymously for the purpose of adversely affecting the practice might be subject to punitive damages, counsel fees and other damages depending on the jurisdiction.
  2. Immediately file the proper complaint form. Each host has a form specific to their Web site which enables complaints to be filed. Merely having a lawyer send a letter, no matter how it is worded or how threatening the tone, might be inadequate and will likely be ignored. Our experience in this area has been that if this step isn't followed, no action will result from your request. Simply threatening a lawsuit is ineffective, unproductive and might waste valuable time. You must use the correct, site-specific complaint form. We suggest to our clients that they have complaint forms for each of the major Web sites on file with the proper filing instructions since the last thing you want to do is to try and locate one when the problem occurs.
  3. Once the complaint form is filed, either the practitioner or their representative should follow up regularly and constantly with the legal representatives of the hosting facilities until the desired action is taken. Here is where you should be relentless and as aggressive as possible. Be prepared to offer whatever proof that you and your team can assemble to show that the statements or disparaging remarks are without basis, malicious or untrue, and that statements are being hosted in violation of the law, including but not limited to, the Digital Millennium Copyright Act. After proper notice, the host can be held liable in court for failing to remove this information which is being published.
  4. Other possible bases or causes of action include: social media that use portions of your material, Web sites and other copyrighted or trademarked materials. Such action might include violations of federal or state copyright and trademark law, and subject the offenders to large fines and penalties. The preliminary requirement for this is that copyright and trademark protection be available. This is readily available, as we have arranged for many of our consulting clients.
  5. Further, even if the negative commentary has some measure of truth, lawsuits for invasion of privacy and holding in a false light might be available. Such commentary often includes statements that are frequently misleading and just as damaging.
  6. Finally, be prepared to file a lawsuit, obtain subpoenas and to request injunctive relief from the courts. There are specific requirements that must be met in order to obtain a temporary injunction. One important factor is the potential for "irreparable harm." It is likely that if a court is presented with the devastation that will occur to patient care from a disruption in that care caused by false and malicious statements as well as to the practice, the staff, their families and the reputation of the doctor, the court will agree that the harm is likely to be "irreparable."
Sometimes, the disparaging, negative and extremely harmful material is spread by mail or by word of mouth. Be diligent in tracking down the source. Enlisting the aid of experienced and trained professionals might be needed. This is not the time to be pennywise and dollar foolish. Above all else, have the mechanism in place for prompt and efficient action. Have this as part of your business plan along with a specific action plan and a detailed list of assignments.

Reputation Management
Throughout the past several years, we have counseled our clients that a vital aspect of risk management in orthodontic practice is practice and doctor reputation management. Your reputation is an asset. It is critical that everyone in the practice directs his or her efforts to this most important endeavor. As mentioned before, reputation management requires its own section in your business and marketing plan, brand management and other practice development efforts. Part of this includes developing your own information dissemination program that can be accomplished in many forms of social networking, including blogs, Twitter, etc., which are frequently updated. These can be in-house or via subscription services. Spend some time and develop your plan. No matter how much time or effort you expend, it will pay dividends in the event that what is described herein happens to you. Think of it as another form of insurance, which you all have in the event of a casualty loss, accident or malpractice. We hope these events never occur, but we still insure against them.

Some Final Thoughts About Social Networking Interaction
In your social media networking section of the business plan, we suggest a definite protocol be implemented and that any and all people who are employed by you and your practice or who represent you be trained to follow the guidelines that you establish. Specifically, patient and potential patient interactions should be limited to the rules that you establish. Failing to do so can lead to less than optimal results and set the stage for your removal from one or more of these opportunities or for negative and disparaging comments. Social media and networking offer many opportunities. However, be prepared because patients will let you and everyone else know if they are displeased with any aspects of their care or interpersonal relationship. Social networking sites offer an expanded public forum for commentary.

Additionally, it is important to educate the staff on how their personal social networking comments can adversely impact the practice. Even a tired, end-of-workday Facebook comment like "My boss was a jerk today!" can be used out of context and disseminated by others in a campaign against a practitioner. While you cannot restrict the staff 's personal use of social media, educating the staff on the dangers should be enough for employees who share the goal of building a successful practice. (This is easily accomplished by a well-designed incentive compensation program which involves the staff in the practice's success.)

Take advantage of the training offered through the various social networking Web sites and for best results obtain additional training. Also, outsourcing of this aspect after thoroughly performing due diligence on the vendor can be another excellent option. In this regard, it is critical that each representative who will be accessing the various social media networking opportunities be completely familiar with their rules and requirements and agree to comply with those and with the rules established by you for your practice. This agreement should be part of their employment or consulting contract. No matter how you proceed, appropriate training, retraining and reviewing is an integral part of your continuing efforts. Make sure employees know that confidentiality and privacy of patient records are of the utmost importance and that they must comply with the requirements under HIPAA, state law and professional ethics, and also to insure that the records are not used for untoward purposes.

With the above in mind, implementing a social media networking program can become a critical component of your orthodontic practice growth strategy
Author Bios
Donald E. Machen, DMD, MSD, MD, JD, MBA, CFA, is the recognized authority on risk management in orthodontic practice having initiated the discipline in the mid-1980s. He developed, moderated and presented at the AAO's first national risk management telecast to more than 2,600 orthodontists. He has represented orthodontists, dental specialists, general dentists and physicians in malpractice lawsuits and other legal matters as a trial lawyer and currently is a trial court judge in Pennsylvania having served for more than 14 years. He is a board certified orthodontist maintaining a part-time practice and is on the orthodontic faculty of Case Western University Dental School and The University of Pittsburgh School of Dental Medicine. He is also an Adjunct Professor of Law at Duquesne University School of Law where is teaches malpractice litigation. Dr. Machen was the editor of the Legal Aspects of Orthodontic Practice column in the AJO, writing a monthly column and has authored columns in JCO and Ortho Tribune. He lectures extensively to orthodontic groups, both large and small, focusing on developing highly effective systems for eliminating lawsuits, optimizing patient care and increasing practice referrals. Dr. Machen is the author of Managing Risk in Orthodontic Practice and is managing director of Risk Management Consultants, LLC. He can be contacted at: drmachen@orthormc.com.

Hollie A. Bernstein Machen, Esq. – After graduating from the University of Pittsburgh School of Law, Hollie spent the early part of her legal career as a litigation associate and then partner of the Bernstein Law Firm, a multi-office firm specializing in creditors' rights. After leaving that firm to raise her three children, Daniel, Lindsey and Roxanne, she began focusing on legal research and writing as a judicial law clerk in Pennsylvania and has remained active in that endeavor for more than 13 years. Additionally, she spent more than five years counseling clients on financial issues as a wealth management advisor at PNC Bank and National City Bank, earning various designations in the financial services profession including that of Certified Retirement Planning Counselor. Presently, in addition to working with clients at Risk Management Consultants, she spends time teaching online legal research skills to attorneys and judges as a research specialist for Westlaw and acts as practice manager for Dr. Machen's part-time orthodontic practice.
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September 2025
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