Ask the Lawyer

March 21, 2012
Issue 1

Do you have a legal question? Dental Products Report Legal Analyst Michael Sacopulos addresses reader questions. Q: My practice has a fair amount of accounts receivable. Should I hire a collection agency or a law firm to work on these accounts?

Do you have a legal question? Dental Products Report Legal Analyst Michael Sacopulos addresses reader questions.

Q: My practice has a fair amount of accounts receivable. Should I hire a collection agency or a law firm to work on these accounts?

A: While I’m naturally biased toward law firms, collection agencies can offer a lower priced option.  Typically, collection agencies and law firms receive a percentage of amounts collected in compensation for their services. Most law firms that specialize in collections are members of the National Association of Retail Collection Attorneys. Explore your options. Ask both what the cost of the services is and what the average collection rate is. Finally, you need to feel comfortable with the strategies and tactics used by those collecting on your behalf. Will the outstanding debt be reported to a credit bureau? Will a small claims action be filed in court? If so, will your collector garnish the wages of the debtor? Whoever you choose to do collection work on your behalf, you will want to have them execute a Business Associate Agreement. With a little bit of effort and planning up front, your practice should see an increase in revenues.

Q: My practice presents financing options to patients. I have heard that some people have been sued for doing this.  Is this true? What should I know?

A: I have recently heard of several lawsuits being filed against dentists based on the claim that the dentist was involved in “predatory lending.” The idea is that the patient did not understand the terms of the financing and was mislead by the dental practice. Predatory lending claims generally involve unfair practices such as fraud or deceit by the lender or the lender’s agent. For example, it would be inappropriate to have a patient under anesthetic sign a credit application.

I recommend that your practice have a standard way of presenting financing options to patients. If you are working with a group such as CareCredit or Chase Health Advantage, direct patient questions to those firms. The goal should be for the patient to understand the costs associated with financing your treatment and to have some amount of time to think about their financing options. As long as your practice presents financing options in a fair and reasonable manner, you should be able to avoid predatory lending claims.

Q: It was recently brought to my attention that there are several malicious and false comments about me posted on the Internet. Because the comments are anonymous, I do not know how to respond. What can I do?

A: Unfortunately more and more dentists are experiencing this problem. First, review the terms of the “Terms of Use” of the site where the comment is posted. If the comments posted violate the Terms of Use, the website should delete the comments. This is your best and quickest route to having malicious comments removed from the Internet. If that is not an option, some experts recommend diluting the negative comments by having happy patients post their feedback to the same website. If enough positive comments are posted, it will make the malicious comment look like what it is, an outlier. Finally, if the malicious comment is truly defamatory, you can hire a cyber lawyer to identify the poster and file suit against that poster. A word of caution here, this can be a long and expensive process. In the future you may wish to consider hiring organizations that assist with your online reputation and dealing with unfair and inaccurate postings. Organizations such as eMerit specialize in assisting medical providers with these problems.  

Q: I want to use Groupon to increase my patient population. I plan to do a Groupon offer for teeth whitening products. However, I have recently heard from several colleagues that this might be illegal. How could this advertising strategy be illegal?

A: Your colleagues may be partially correct. A number of legal experts and several authorities have stated that the use of Groupon by dentists and physicians is a violation because it is fee splitting.  As a dentist, you are not allowed to share a portion of a professional fee with a non-dentist for the referral. We can all agree that it is impermissible to pay a flat fee for each patient someone sends to your practice. Effectively this is the Groupon model.  

However, by selling a product or good that is not tied to a professional service, you avoid this problem. Assuming that non-patient can come into your practice and purchase an item without having to incur fees for professional services, then the groupon model does not violate fee splitting rules. If you keep your groupon offer strictly to a product and avoid involving any professional fees, you will be on safe ground.

Michael J. Sacopulos is a partner with Sacopulos, Johnson & Sacopulos in Terre Haute, Indiana. He also serves as Legal Analyst for Dental Products Report and is National Counsel for Dental Justice Services, Inc. His practice focuses on assisting healthcare professionals develop strategies and techniques to avoid medical liability claims. Mr. Sacopulos returned to Indiana to practice law after attending Harvard College and the London School of Economics. He may be reached at Mike_Sacopulos@Sacopulos.com.