The Dentist's Network #72

Thomas L. Snyder, DMD, MBA
Managing Partner
The Snyder Group, LLC
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Key Points for Non-Solicitation Agreements

When reviewing Associate Contracts, we often find that Non-Solicitation issues are not addressed as comprehensively as they should be. Every Associate Agreement should contain terms that specifically state the associate’s behavior in soliciting patients and/or staff after they leave your employment. Here are a few points that should be included in an agreement that will protect your interest:

Remedy
If the associate breaches the non-solicitation terms in addition to any other legal remedy the employer may take, the associate should agree to a liquidated damages penalty, which essentially is a value placed on the record of each patient who he/she solicits.

Copying of Records
To further enforce the solicitation section of your associate contract, specific terms and conditions should be stated concerning the associate not being able to photocopy any patient records without your authorization and, moreover, taking any records from the premises unless approved by you. This puts the associate on notice that your patients’ information is not to be compromised nor copied in any manner.

Announcing a New Location
Although solicitation is a direct, calculated action to improperly contact patients after employment the associate should be able to place announcements in appropriate publications announcing that he or she is opening a new dental practice or they are working at another practice (if it’s outside of the covenant area) where covenants are enforced. The associate should not list your name in any advertisement, (for example formerly affiliated with Dr. Smith), as there is implied goodwill here, and that may be construed as solicitation. If a patient chooses to continue to be treated by your former associate at the associate’s new location, the associate should be allowed to have patient charts and files transferred to the associate, of course, at the patient’s request. Typically, an administrative fee of $25 to $50 per patient should be charged to the associate per patient record in order to reimburse the employer for the time and effort to get the records copied and mailed to the new location.

Former Patients
If an associate brings a number of patients to your practice, in order to avoid any problems with solicitation after they leave, we suggest that a patient list be prepared of all patients the associate is bringing to your practice and attach it to the employment agreement.

Staff Solicitation
Although most contacts have stipulations on patient solicitation, very few have stipulations about staff solicitation. In fact, solicitation of staff, in our opinion, can be more detrimental than losing 30 or 40 patients to your former associate. Imagine if your dental hygienist of 20 years were solicited by your former associate. Chances are, they’ve established a significant amount of goodwill and if that hygienist were to leave you may be compromised from an economic point of view as patients may follow your former hygienist. Consider adding a liquidated damages penalty for staff members who are solicited by your former associate.

We typically recommend two to three months of a staff member’s salary as a liquidated damages payment. Recruiting qualified dental staff is quite expensive in terms of advertising, interview time and training. There will be economic loss if a lay staff member is solicited.

Confidential Information
As part of the restrictive covenant and non-solicitation sections of your agreement, a section on confidentiality should also be included which would state that the associate will not during the time of employment or during the time thereafter use, disclose, divulge or communicate to any person, company or other entity in any manner any information acquired by the associate that relates to the practices finances, how it operates or other significant data, as well as information on the employer or other dentists or staff members in the practice. Again, it is just another way to protect the integrity of your practice operations so that the associate does not make any comments that could have a negative impact on your goodwill in the community.

In conclusion, as we stated in the prior column, well-written employment agreements with very specific terms and conditions lets the associate recognize that you are running a business and anything that can cause harm to your practice deserves an appropriate response to protect your business interests.

Dr. Thomas L. Snyder is Managing Partner of The Snyder Group, LLC, a nationwide practice transition and financial management consulting firm. With more than 75 years of experience in the field, The Snyder Group can provide you a full range of services relating to practice transition matters and retirement planning. They can be reached directly at 1.800.988.5674.

If you would like additional help, email Dr. Snyder at drsnyder@thedentistsnetwork.net.

Interested in having Dr. Snyder speak to your dental society or study club? Click here.

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Sally McKenzie, CEO
McKenzie Management
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The Patient is MAD. Now What?

Have you noticed that people are more irritated than usual these days? At the dry cleaners last week, a man was yelling at the clerk. He was furious because the creases on the sleeves of his dress shirt were slightly off. At a recent dental conference, one of the attendees was livid because the coffee had run dry. People are stressed and cranky these days. Whatever it is they are paying their hard-earned cash for, it better be right and it better be what they expect. If it’s not, you can bet the house that the complaints will follow.

Certainly, when you’re the one delivering the grievance, you feel completely justified in making your case. Whoever wronged you better make it right and now. But when the tables are turned and you’re on the receiving end of that anger or frustration, it takes a fair amount of self control and understanding to respond appropriately rather than react in anger.

A dental practice is not unlike any other business. People make mistakes, things go wrong, and you’re dealing with a temperamental public. So complaints can and do happen. Unfortunately, in most cases, neither the team nor the doctor is very well prepared to manage them.

Certainly, it’s no treat to be on the receiving end of a patient complaint but when someone takes the time to express a concern, vent a frustration, or alert you to a problem, that disgruntled patient is doing the practice a very big favor. They are also telling you that they actually care.

Although the numbers vary, studies indicate that only about 4% of customers complain and 91% of the other 96% just go away because they believe that complaining is a waste of their time and energy. The good news, however, is that the majority will not bail out immediately. And, lucky for you, most people do not want to leave their dentists on a whim, which provides practices with a window of opportunity that many other businesses don’t enjoy.

However, even though disgruntled patients aren’t going to fire you and your team on impulse, they are likely to detail their version of the negative experience to about seven to 10 other family, friends, and co-workers. Conversely, they will also happily share the news with others when their complaint is handled well.

When you are forced to stand toe-to-toe with a disgruntled patient, consider the person your ally not your enemy. Follow these steps:

First, stay calm and shut up. Listen carefully. Give them the opportunity to say what they need to say without interrupting. Allowing them to vent their frustrations will help the patient to get past the incident rather than harboring ill feelings.

Watch your nonverbal communication. Your mouth may be silent but that condescending look on your face is pouring fuel on the fire. If you think of yourself as calm and concerned it will come across to the patient.

Pay attention to your own prejudices. Some patients bring baggage along with their complaints, but resist the urge to use that as an excuse to disregard what they have to tell you. They may actually be among the very few with the guts to tell you what you need to hear.

Take notes detailing the experience or situation. This is an indication to the patient that they are being heard.

Apologize sincerely to the patient, even if you do not feel the practice is at fault. And don’t be afraid to agree a little. Sometimes a few simple words, such as “I’d be upset too.” “What can I do to help?” can calm an angry patient immediately.

Tell them that you will look into the matter, and follow through on that promise. Investigate to get the full picture. If the complaint is the result of a practice system, consider bringing the matter up at the next staff meeting and ask the staff for input on how it can be addressed to avoid similar complaints in the future.

Fix the problem. You will likely keep the patient who made the complaint as well as the multitude of others who have had the same problem but never mentioned it.

Send a letter thanking the patient for her time and effort. Explain what has happened to address the situation. Offer a service or product, such as an in-home whitening kit or a certificate for dinner at a local restaurant for her troubles. I can virtually guarantee the patient will be more than happy to tell seven to 10 friends, family members, and colleagues about how the situation was handled.

Complaints can confirm weaknesses in your staffing and management systems that you may have long suspected needed to be addressed. Welcome them.

Sally McKenzie is CEO of McKenzie Management, a nationwide dental management, practice development and educational consulting firm. Working on-site with dentists since 1980, McKenzie Management provides knowledge, guidance and personalized solutions that have propelled thousands of general and specialty practices to realize their potential.

Interested in speaking to Sally about your practice concerns? Email her at sally@thedentistsnetwork.net or call 1.877.777.6151.

Interested in having Sally speak to your dental society or study club? Click here.

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