VICARIOUS LIABILITY OF DENTAL STAFF MEMBERS

In today’s legal environment, a owner of a dental practice may be vicariously liable for the errors and omissions of staff members. As a general rule, the risks are clinical in nature, however, a substantial amount of errors or omissions occur as a result of miscommunication. In matters of alleged patient miscommunication, a patient alleges that they were told the wrong clinical information, or were never told the correct clinical information at all.

Although, claims arising from a dentist’s vicarious liability for the clinical error or omission of a staff member may not be very common, dental malpractice claims arise from a patient’s dissatisfaction with staff member interaction. A dental practice owner can manage the risks of staff members by hiring qualified individuals, who can project the desired image of the practice, are well trained, and communicate in a clear manner.
 

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Stuart J. Oberman, Esq handles a wide range of legal issues for the dental profession including cyber security breaches, employment law, practice sales, OSHA, and HIPAA compliance, real estate transactions, lease agreements, noncompete agreements, dental board complaints, and professional corporations.
For questions or comments regarding this article
please call (770) 554-1400 or visit www.obermanlaw.com

If you would like Stuart J. Oberman, Esq. to speak at an event to your organization, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com)

 

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Work for Hire: Protecting Your Intellectual Property Rights

Many dentists hire independent consultants to develop their website or to perform marketing services to brand their dental office.  However, most dentists are unaware that without a written contract that includes certain specific provisions, the independent consultant may retain the ownership of the intellectual property created.  Because the consultant’s ownership of the intellectual property is not common knowledge, this can create problems for dental offices that do not adequately protect their rights.

 

Copyright law protects work from the time it is created.  The general rule under the Copyright Act states that a person who creates the work is the author of that work, unless the work is designated as “work made for hire.”

 

For example, if a dental office hires a graphic design company to create its’ company logo and a “work made for hire agreement” was not signed before the logo was created, the graphic design company may own all of the right, title and interest to the dental office’s logo.  The graphic design company would be free to license or sell the logo and dilute the market place with similar images.  The dental office would have no control over its own logo.

 

There is, however, an exception to this principle: “works made for hire”.  This doctrine allows for an employer to be considered the author of the work even if an employee created the work. If an employee creates intellectual property for an employer, the employer will own the exclusive rights to work created, if the work was created within the scope of the employee’s employment.  However, although work created by an employee is considered to be “work for hire” and is owned by the employer, the more cautious dental practice owner will still have their employees sign an employment agreement that transfers ownership of work, ideas and inventions to the employer.  Because many employees often work from home or at odd hours, it can be unclear if a concept or idea was created during the course of employment.

 

If an independent contractor is performing the services for a dental practice, the contractor is the lawful owner of the work unless the “works made for hire” requirements are met.  The “work made for hire” doctrine requires that three [3] conditions must be satisfied in order for the hiring business to own the original work.

 

  • First, prior to the commencement of the work, the parties must agree in writing that the work shall be considered “work for hire”.
  • Second, the work must have been “specially ordered” or “commissioned” by the hiring party.
  • Finally, the work must fall within at least one of the nine [9] statutorily mandated categories of commissioned works listed in the Copyright Act. A “work made for hire” is defined in the Copyright Act (15 U.S.C. § 101) as “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas.

 

These requirements necessitate that the parties have a written agreement in place with specific work-for-hire provisions. And since it is not always clear whether the work product falls into one of the nine [9] specified categories authorized by statute, a well-drafted independent contractor agreement should always include language assigning all of the intellectual property rights associated with the work created to the dental practice contracting for the work.

 

Since more and more dental offices hire independent contractors and consultants rather than hiring full-time or part-time employees, the question of ownership regarding intellectual property rights has created a substantial amount of litigation.  The consequences of failing to take the necessary steps in order to protect your dental office’s intellectual property rights can be very problematic, particularly if there is a dispute over payment or the quality of work with the independent contractor or consultant.

 

In today’s digital and knowledge based business world, dental offices are not always careful in protecting their “work made for hire”.  Intellectual property rights associated with work created by employees and independent contractors can be the source of expensive litigation if a dental office becomes successful.  Intellectual property is also an important subject of review during any due diligence period that may be conducted for the purposes of financing and selling a business.  As a matter of general practice, and especially when the intellectual property being created is crucial to the long-term growth of the practice, well-drafted employment and/or independent contractor agreements must be in place.

 

 

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Stuart J. Oberman, Esq handles a wide range of legal issues for the dental profession including cyber security breaches, employment law, practice sales, OSHA, and HIPAA compliance, real estate transactions, lease agreements, noncompete agreements, dental board complaints, and professional corporations.

 

For questions or comments regarding this article please call (770) 554-1400 or visit    www.obermanlaw.com

If you would like Stuart J. Oberman, Esq. to speak at an event, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com).

 

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Responding to OSHA Requests

Initial informal phone calls are becoming more and more frequent from OSHA. First and foremost, you must have a plan in place, if you ever receive such a call from OSHA.

 

 

Letters from OSHA

Typically, when OSHA receives a non-formal complaint, its first investigative step is usually to send a letter to the owner of a practice.

 

 

Telephone Calls From OSHA

When investigating a non-formal complaint, OSHA may also call a practice, in addition to sending an investigatory letter. Responding to an OSHA telephone inquiry poses several unique risks for practice owners.

 

 

Developing an Office Protocol

To avoid potential and unintended problems, practice owners should create a risk management plan for responding to telephone calls from OSHA inspectors. Once formulated, the office protocol should be clearly explained to and followed by all office staff.

 

 

By formulating an office protocol in order to handle OSHA investigations, practice owners can take steps to adequately protect themselves during the investigation process. It is crucial that practice owners plan for OSHA investigation inquiries. In addition, it is also critical that all employees are aware of office protocol regarding OSHA inquiries, in order to avoid unintended consequences.

 

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Stuart J. Oberman, Esq. handles a wide range of legal issues including employment law, practice sales, real estate transactions, lease agreements, OSHA compliance, board complaints, employment law, and entity formation.

 

 

For questions or comments regarding this article please call (770) 554-1400 or visit   www.obermanlaw.com

If you would like Stuart J. Oberman, Esq. to speak at an event to your organization, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com)

 

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Pregnancy and Employment in the Dental Practice

Due to the vast number of female employees in the dental field, the issue of employee pregnancy arises frequently. Many dentists fail to abide by federal law in their dealings with pregnant employees because they simply aren’t familiar with the legislation protecting the pregnant employee: the Family and Medical Leave Act (FMLA) and the Pregnancy Discrimination Act (PDA). However, the lack of knowledge surrounding these laws can be costly and can lead dental employers straight into disputes with labor boards.

The Family and Medical Leave Act applies to employers with fifty (50) or more employees. Covered employers must provide up to 12 weeks of unpaid leave to eligible employees. In addition, the Pregnancy Discrimination Act (PDA), which applies to employers with fifteen (15) or more employees, also prohibits discrimination against pregnant women.

These federal laws provide that women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work. Further, most states have enacted their own pregnancy discrimination laws. Many states have also lowered the covered employer threshold to those employers with fewer than fifteen (15) employees, with some states requiring that employers with four (4) or more employees comply with such laws.

When federal or state pregnancy laws apply to your dental office, it is important to be aware of and to adhere to certain guidelines. First, if the pregnant employee refuses or is unable to perform certain tasks, then the dental employer must determine what accommodations may be needed. However, if the accommodation would cause an undue hardship and require significant difficulty or expense for the employer, then the employer may deny any accommodation. In addition, when federal or state laws apply to a dental practice, the dentist must remember that it is illegal to deny employment, promotions, or to fire a woman because she is pregnant. Finally, employees returning from a pregnancy leave are entitled to return to their former or a similar position at the same work schedule and pay, unless there is a legitimate business reason as to why that job is no longer available.

Women are a protected class, and if an employee’s pregnancy is handled inappropriately, the employer could end up in court, incurring costly fees and time away from the practice. Therefore, it is extremely important that dental employers familiarize themselves with the laws that apply to their practice. Those who believe themselves the victim of discrimination in the workplace in the Kansas City area may want to visit Brady & Associates to see how their attorneys can assist.

Stuart J. Oberman, Esq handles a wide range of legal issues for the dental profession including cyber security breaches, employment law, practice sales, OSHA, and HIPAA compliance, real estate transactions, lease agreements, noncompete agreements, dental board complaints, and professional corporations.

For questions or comments regarding this article please call (770) 554-1400 or visit www.obermanlaw.com If you would like Stuart J. Oberman, Esq. to speak at an event to your organization, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com)

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