Opinion | Does Your Practice Have a Website? Watch Out for ‘Drive-By Lawsuits’

In this video, healthcare marketing consultant Ron Harman King, MS, discusses “drive-by lawsuits” — when a plaintiff or lawyer need only randomly drive by businesses in the hunt for Americans With Disabilities Act (ADA) violations.

Following is a transcript of his remarks:

Does anybody remember the Yellow Pages? You know, those bookshelf-breaking phone directories that once inhabited just about every kitchen pantry?

The Yellow Pages are still around, but are mainly digital these days. Taking their place, of course, are websites. From donuts to doctors, consumers everywhere today depend on search engines and websites for information about what to buy, what to eat, what to wear, who to date — and, obviously, where and from whom to seek healthcare.

In my experience, physicians were among the last professionals to shift from Yellow Pages advertisements to website publishing. However, especially for providers in private practice, websites have become nearly as essential as exam rooms.

In total, the number of websites worldwide is approaching 2 billion. That’s one website for every four humans inhabiting our planet. Their ubiquity has created a whole new industry in the last 2 decades.

But website developers and online advertisers are not the only ones benefiting from the digital age. Some lawyers have also discovered the internet to be an extraordinarily efficient means of generating business.

In this theme, it’s time to say hello to a new form of litigation traditionally called “drive-by lawsuits.” When U.S. Congress passed the Americans with Disabilities Act in 1990, millions cheered the dawn of a new age. These were people who found their way blocked into buildings by a lack of wheelchair access or other impediments discriminating against individuals with a range of disabilities, from vision impairment to HIV to autism.

The most visible sign of the ADA’s effects is the blue-painted handicapped parking spaces in public parking lots and parking decks coast to coast. The ADA legally mandates the spaces. If a business doesn’t provide fully ADA-compliant parking, in some states that have passed similar laws, you don’t even have to be a customer to sue the business.

That means, for example, if a handicapped parking space is a few inches too narrow or if the blue handicapped-parking sign is in the wrong place, in those states a lawyer can sue and collect cash payments plus attorney’s fees. In some locations, a successful plaintiff doesn’t have to offer a grace period for a business owner to fix the problem.

Why are they called “drive-by lawsuits?” Because a plaintiff — or a plaintiff’s lawyer — need only randomly drive by businesses in the hunt for ADA violations. They don’t have to even enter the business. Sometimes a tape measure is all that’s required to launch litigation.

Consequently, one law firm reports that ADA lawsuits have tripled in just 4 years, with New York, Florida, and California accounting for the lion’s share.

Now comes a new version of drive-by lawsuits. You might call them “click-by lawsuits.” Enterprising plaintiffs and their lawyers have latched onto the convenience of Google, which allows them to identify ADA violations from afar. Voilà. A desk chair has replaced a driver’s seat.

First, lawyers discovered that the use of Google Earth on their computers could help them find not only ADA parking violations, but also aerial photos of hotel swimming pools lacking compliant lifts that help people with physical disabilities in and out of the water. Then it was only a matter of time before they realized that the Google search engine could also locate websites not easily legible to individuals with impaired sight or audible to those who are hearing impaired.

Before long, website owners and publishers — including healthcare providers — began receiving lawyer letters threatening ADA lawsuits. According to one account, more than 2,000 website-related ADA suits are filed annually.

The rise in suits raises the question of who should be worried about becoming a defendant. Here’s where it gets sticky. The U.S. Department of Justice, the principal federal agency enforcing the ADA, has not updated the regulations in more than a decade. The word “website” appears only three times in the text, mostly in reference to the department’s website. Accordingly, consensus within the legal and information technology communities is that while subsequent official publications say the ADA applies to government websites, federal law and some similar state laws are largely silent on whether non-governmental websites must comply.

In my research, I’ve found courts to be divided over state accessibility laws and have seen no indication that the Justice Department will begin enforcing the law against private websites. And if they do, what standards will they apply?

To be sure, one set of standards comes from the World Wide Web Consortium [W3C], a nonprofit international organization that sets technical guidelines for website publishing worldwide. To address website accessibility, the W3C has promulgated the Web Content Accessibility Guidelines [WCAG], a fairly exhaustive set of recommendations aimed principally at assisting website visitors with sight and hearing disabilities.

The problem is, implementing such a comprehensive remedy can be costly for small businesses, as well as for large businesses with websites containing hundreds or thousands of pages. This leaves most website publishers with only two practical choices: wait for a lawyer’s letter to appear in the mailbox or install special website software available through a monthly subscription.

A variety of software subscriptions is available for increasing website accessibility, typically for a monthly fee ranging from $50 to $100. The software allows a visitor to click on an icon on the site and open a window [to view a number of selections] for adjusting font size and color and having the text read aloud by a robot, among other conveniences.

The software packages are not as robust as the implementation of the WCAG. But for many website publishers — notably private medical practices — they can significantly improve website access to the disabled, as well as provide a hedge against unwanted lawyer attention for an affordable price.

Of course, a website developer must still install the software, but it’s usually an easier, comparatively lower-cost task. In quite a twist of fate, the best way I know to shop and select the software is through Google. Type the words “ADA website-compliant software” into Google or another search engine, and you should find reviews and vendors galore. Ironically, the cause of the disease thus becomes the cure.

It’s unfortunate that the cyber-world has hatched so many nefarious schemes, from hackers to phishers to less-than-scrupulous legal beagles. As the novelist Mario Puzo once observed, “A lawyer with a briefcase can steal more than a thousand men with guns.” Fortunately, that applies only to a tiny percentage of attorneys.

As for me, I would never go back to the Yellow Pages days. The internet has been instrumental in obtaining just about everything of value I have sought in the last 2 decades, including advanced academic degrees, a spouse, and a handful of treasured healthcare providers. For that, I am thrilled to be living in the digital age.

Ron Harman King, MS, is CEO of Vanguard Communications, a healthcare marketing and practice management consulting firm, and the author of The Totally Wired Doctor: Social Media, the Internet & Marketing Technology for Medical Practices.