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Medical Injustice – Contracts That Suppress Patient Comments About Their Doctors or Dentists


Last week we filed a class action complaint on behalf of the patients of a New York dentist, Stacy Makhnevich, over a form agreement that she imposes on all new patients to try to suppress any online comments on her work that she finds disagreeable.  In the form, Makhnevich promises not to evade HIPAA’s patient privacy protection in return for patients’ commitment not to disparage her, not to post any comments about her publicly; if the patient writes anything about the dentist, the patient assigns the copyright in those comments to Makhnevich.   Relying on the form, Makhnevich sent one of her patients invoices purporting to bill him a daily hundred-dollar fine for having posted comments about her on Internet review web sites.

The copyright assignment aspect of the agreement is especially dastardly.  It is intended to enable the dentist to send a DMCA takedown notice to the host of any web site where the criticism is posted.  Because the DMCA protects site hosts from liability for copyright infringement, but only if they act expeditiously to remove infringing material once they receive notice of its presence on their servers, hosts generally respond like Pavlov’s dog to such notices.  In theory, copyright could be asserted regardless of whether a comment is true or false, and regardless of whether it is an opinion that is constitutionally protected from libel claims; copyright can also be used as a basis for seeking awards of statutory damages even if there are no real damages.

Our individual client, Robert Lee, had a bad experience, not with Makhnevich’s dental work, but with her billing and her failure to submit the documents he needed to get reimbursed by insurance.  After his repeated efforts to get her office to do what they were supposed to do, he posted complaints on Yelp and on DoctorBase.  Makhnevich threatened to sue him over the posts, and sent DMCA takedowns, but no doubt to her surprise, not only did the patient not remove his comments, but both Yelp and DoctorBase defied the threat of infringement liability, telling Makhnevich that they regarded her agreement with the patient as illegal.  Undeterred, Makhnevich sent Lee invoices purporting to bill him $100 per day for the continued copyright infringement.  Makhnevich also hired a lawyer who sent additional threats of litigation, but rather than continue to wait to be sued, Lee has now filed suit for a judgment declaring the agreement void, an injunction preventing Makhnevich from imposing the agreement on other patients, and a notice to all Makhnevich patients informing them that they are no longer restrained by the agreement.

The complaint spells out the legal theories on which we will rely to void the agreement, but here I want to emphasize the policy reasons why we decided to take this case.  The form agreement that Makhnevich imposes on her clients was developed by a North Carolina based company calling itself “Medical Justice,” which markets the form to doctors and dentists as a way to insulate themselves from fair criticism through artificial means instead of by providing superior medical care. “Medical Injustice” is a more apt name for this company’s products.  After all, no medical professional objects to being praised, and inspection of Yelp’s page on Makhnevich reveals that she is the subject of a number of complimentary posts.  There is no reason to believe that Makhnevich has asserted copyright to get them removed.  Indeed, many of the comments read as if they were written at the behest of the dentist; some read as if they were sent to the dentist rather than being posted directly on Yelp.  By suppressing one side of the story, medical professionals who use these agreements create a distorted picture that prevents consumers from making an informed decision about which provider they should use.  Indeed, suppression of criticism is unfair to other doctors and dentists whose superior qualities make it unnecessary for them to use such contracts.

The abusive invocation of copyright law as part of this strategy also drew us to represent Lee.  Much of our Internet free speech practice has been directed at intellectual property law theories that get just a bit too big for their britches.  This is such a case.

The purpose of copyright law is to encourage creative expression by providing a temporary monopoly (sadly, less and less temporary) that enables those whose expression is marketable to reap financial rewards for their work.  At the same time, copyright law avoids giving any monopoly on facts or ideas.  Agreements like the one at stake in the Makhnevich case turn copyright law on its head by taking advantage of the fact that, as a practical matter, ideas and facts are articulated through copyrightable expression; hence anything that a patient writes about a doctor or dentist is likely to have sufficient originality to be copyrighted.  The Medical Injustice agreements allow professionals who use them to suppress the underlying opinions and facts, not to reap financial rewards from the expression and not to encourage further creativity.  This is a misuse of copyright law and in our view it needs to be stopped.

Not to deflect responsibility from Makhnevich, whose behavior toward Lee has been reprehensible, but the real villain of this piece is the Medical Injustice company.  We assume that Medical Injustice will step up to defend the contract that it has been marketing to its customers so that we can have a well-litigated determination of its validity.

The excellent “Doctored Reviews” web site explains in detail why these efforts are bad public policy.   More information is in the complaint about Medical Justice that the Center for Democracy and Technology filed yesterday with the Federal Trade Commission.

UPDATE:

Less than a day after we filed the lawsuit, Medical Justice started telling reporters that it is “retiring” the agreement over which Lee has sued Makhnevich, apparently in reaction to the litigation.  The story was first broken by Timothy Lee on Arstechnica — poetic justice, perhaps, because it was Timothy Lee whom Robert Lee contacted after reading Timothy Lee’s previous Arstechnica article about Philadelphia dentist Kenneth Cirka using the same contract; Timothy Lee suggested he contact me for help.  (The two Lee’s are not related).  A later story reports that Medical Justice went further, saying “We probably should have retired the agreement earlier, but today’s the day we did it.”

It is gratifying to have had this effect.  It remains to ensure that Makhnevich and other dentists stop imposing the agreement on new patients, and notify all of their existing patients that they are revoking the obligations purportedly imposed by the agreements.

Paul Alan Levy is an attorney at the Public Citizen Litigation Group. This post originally appeared on Public Citizen’s Consumer Law and Policy Blog.

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risingmedicareDentist in Wacodentist clovisLeslie Folliardamadahomecare Recent comment authors
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risingmedicare
Member

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dentist clovis
Guest

I agree with Dr. Mike. My previous employer did satisfaction surveys, and as most physicians, 90+ patients were satisfied or very satisfied. My 4 online reviews were all malignant, at least 2 of which related to a very disputed medical condition (that I diagnose and treat according to the respective guidelines, leaving patients who hold fringe views unsatisfied). I occasionally thought of asking obviously satisfied patients to write a review, but that looks stupid and desperate. I would probably make the effort to reply to every negative review, but as long as that’s not possible, i will just ignore future… Read more »

Leslie Folliard
Guest

This may not be the best place to ask this, but, I’m searching for clovis dentist and I have not idea who is good and who is not do you have any info on this a good clovis dentist? Its address is in Clovis, not far from my home I can’t find reviews on them — Clovis Dental, 510 4th St, Clovis, CA 93612 – (559) 898-2082

amadahomecare
Guest

Oh yes,On regarding this article ,we filed a class action complaint on behalf of the patientof a New York dentist which over a form agreement that she imposes on all new patients to try tosuppress any online comments on her work that she finds disagreeable. In the form, promises not to evade HIPAA’s patient privacy protection in return for patients’ commitment not to disparage her, not to post any comments about her publicly; if the patient writes anything about the dentist, the patient assigns the copyright in those comments to Makhnevich. Relying on the form, Makhnevich sent one of her… Read more »

MD as HELL
Guest
MD as HELL

Thre are plenty of patients out there. Just never see the complainers ever again. Discharge them from your practice, properly of course. Wish them luck.

Jonathan H
Guest
Jonathan H

I’m curious, could a retail establishment do that? If I wrote a bad review of a McDonalds, or local diner or drug store staff, could they refuse my business? This is not rhetorical, I’m not sure how the law works here.

rbaer
Guest
rbaer

Maybe hellMD knows more, but I know that physicians are free to discharge patients, as long as they cannot be blamed for abandonning patients (e.g. providing them transitional care for a month or 2 and refer to other qualified providers). That is usually done for noncompliance, noshows and abusive behavior … I don’t know whether the reasonning of a poor review is sufficient, it probably is. Uusally, negative reviewers are disgruntled and don’t want to come back anyway (at least not short term). I had a spouse of a somewhat cognitively impaired and passive patient write a complaint about complications… Read more »

MD as HELL
Guest
MD as HELL

You betcha.

Dr Hart
Guest
Dr Hart

Maybe your client shouldn’t sign agreements he has no intent of living up to. If you look at most negative reviews of doctors and dentists, at least half or more involve billing problems. Yeah, doctors suck at getting your rip off insurance to pay up. Big news. Congrats for that. I’ll bet you got your $600 per hour up front with a big fat retainer. The protector of liberty and freedom collects up front. I’d like to write a nasty online complaint about every patient who’s insurance company stiffed me but that would be a full time job.

DeterminedMD
Guest
DeterminedMD

Face it, we are a culture of focusing on the negative and quick to point out faults and errors. Seriously, how many here have spontaneously praised someone at your job for doing a good job on something that was not incredibly unusual or unique, just noting an effort was appreciated and noted?

Being a doctor is a thankless job, thanks to all the bastards who made it a business. Face it people, the customer is not always right, and by the way, neither is the patient!!!

fid72
Guest
fid72

Medicine has always been a business, and a very well-paid one at that. It’s a bit hard to feel sympathy for this particular thankless job when other jobs (teacher, coal miner, etc.) are equally thankless, and not nearly as well-paid (even netting out the cost of training).

DeterminedMD
Guest
DeterminedMD

No, disagree, and good luck trying to foster that lie on those of us who know better. “Medicine has always been a business”, bs beyond, buddy! I’ll give you a little bit of slack on the teacher analogy, but, you don’t have to take MCATs and then commit to 8 or more years and carry pagers after you finish college for that training. And, per the pensions we are learning these union folks are getting, not so profoundly underpaid after all, eh? Don’t see the muzzle prints on the foreheads of the coal miners. Yeah, I would not do it,… Read more »

Dentist in Waco
Member

Ya i feel same as you. “t’s a bit hard to feel sympathy for this particular thankless job when other jobs (teacher, coal miner, etc.) are equally thankless, and not nearly as well-paid (even netting out the cost of training).”

Barry Carol
Guest
Barry Carol

If I were setting the rules for online review sites, I would require the following: 1. Patients must use their real names whether the review is positive or negative. If it’s worth saying, it should be worth owning up to. 2. Doctors should be able to give their side of the story / issue with a presumption that the patient waived his or her right to privacy by posting the review. 3. Doctors and dentists should also be able to post the results of any patient satisfaction surveys they may have done or commissioned. Upon request, patients should be able… Read more »

Jonathan H
Guest
Jonathan H

Barry, I agree with #3, and half agree with #1 and #2. Patients should have to engage in some level of identity validation to limit paid fluff-reviews, ex-spouses engaged in sabotage, etc. However I see no reason why that person’s identity has to be made public. I would rather that the review site do some validation privately. Sometimes you don’t have that much choice in physicians. A public service can be performed by telling others what the experience with the physician is like, even when the reviewing patient chooses to continue to see the physician despite some problems or disagreements.… Read more »

Chris Boardman
Guest

Record companies tried litigation as a means to protect their business. It didn’t work. Using the threat of litigation as a means of preventing negative comments by patients will also fail. There is no real way to police emotional online behavior or to force anyone to do anything in an online environment. Through my social media consulting work I’ve found that being aware of yelp and other review sites is the only effective insurance against disgruntled patients (consumers). Further, rebuttal to a negative comment is an effective means of protection as well as being another opportunity to extend your brand.… Read more »

Dr. Mike
Guest
Dr. Mike

While I agree the behavior of the practitioner in the article is deplorable, I still feel that we on the provider side are severely handicapped in this area of online ratings. We have no protections. So few people actually post ratings and as a consequenc the ratings end up highly skewed by a few disgruntled patients, and the cause of the disgrunlement is very often something we have very little control over. “I’m sorry, I can’t refill your percocet early” “No, I don’t think antibiotics are going to help in this situation” “You will have to make an office visit… Read more »

rbaer
Guest
rbaer

I agree with Dr. Mike. My previous employer did satisfaction surveys, and as most physicians, 90+ patients were satisfied or very satisfied. My 4 online reviews were all malignant, at least 2 of which related to a very disputed medical condition (that I diagnose and treat according to the respective guidelines, leaving patients who hold fringe views unsatisfied). I occasionally thought of asking obviously satisfied patients to write a review, but that looks stupid and desperate. I would probably make the effort to reply to every negative review, but as long as that’s not possible, i will just ignore future… Read more »

Jonathan H
Guest
Jonathan H

Rbaer, it’s true for almost any product or service that people with very strong feelings are far more likely to leave a review. Since most satisfied patients/customers don’t feel all that strongly about it (you have simply met expectations), a disproportionate percent of the reviews will be negative. That said, negative reviews should not be suppressed as long as they are genuine. I, and probably most of us, use them for everything from restaurants to cars to, yes, doctors. And, like anyone with a brain, I use my judgement to determine how much credence to give each review. Here is… Read more »

rbaer
Guest
rbaer

I never indicated they should be suppressed, but I suggest docs should be enabled/invited to comment.

Moreover, the doctor patient relation is truly very different from the other services you describe, and the previous poster and I gave important examples in what respect; moreover, payment is different, and the knowledge gap may more pronounced for most visits.

Jonathan H
Guest
Jonathan H

That’s fine with me, though take care that you don’t come across as defensive and make the matter worse.

As for removing comments, I believe some review sites allow suppression of reviews when docs complain. I was referring to that practice, and the expansion of it, and I was writing sloppily in not being clear about that.