Clinician Sued for Enforcing Contract on Online Reviews

Clinician Sued for Enforcing Contract on Online Reviews
Laird Harrison
December 2, 2011 — A patient is suing a dentist for enforcing a contract that restricts patients from publicly commenting on her practice.

The lawsuit, filed in US District Court for the Southern District of New York, accuses Stacy Makhnevich, DDS, of violating the rights of patient Robert Allen Lee by threatening him with a lawsuit for posting critical comments about Dr. Makhnevich on 2 online review sites.

Lee does not dispute that he signed a contract agreeing not to comment on Makhnevich, nor that he posted a complaint about her on several Web sites, including Yelp and DoctorBase, but his attorney argues that the contract infringed his rights.

"There are contracts which are illegal," Paul Allen Levy, a staff attorney at Public Citizen, a public interest law center, told Medscape Medical News. "And there are contracts which are imposed in an illegal manner. This contract can be invalidated in either manner."

Dr. Makhnevich and her attorney did not return calls seeking comment for this article.

Medical Justice, the company that created and has marketed the contract to both dentists and physicians since 2007, disputes Levy's assessment. "My belief is that these agreements are honest, ethical, and legal," CEO Jeff Segal, MD, told Medscape Medical News.

The company stopped selling the contracts when it got word of the lawsuit, but had already planned to discontinue them because it had found a better way of responding to the problem of negative online reviews, Dr. Segal said.

The lawsuit gives this account of the events:

On November 4, 2010, a toothache prompted Lee to visit Dr. Makhnevich's office in the Chrysler Building in New York City. There he was told he would have to pay directly but that the office would submit paperwork so he could be reimbursed by his insurer.

Among the papers he was given to sign was a "Mutual Agreement to Maintain Privacy," in which Dr. Makhnevich promised not to share information about Lee with marketing firms, and Lee promised in return not to comment on her practice. If Lee did comment, the contract transferred copyright on his comments to Dr. Makhnevich.

Lee signed the papers, and Dr. Makhnevich "drained the infection," restoring the tooth at a subsequent appointment. For these procedures, Lee paid Dr. Makhnevich $4766.

Subsequently, the dentist's staff filed the claim to the wrong insurance company and never corrected the error, the lawsuit says. When Lee asked for records so he could submit the claim himself, the staff referred him to a third party that wanted to charge him more than $200 for the records, it says.

Later Lee conferred with another dentist who told him he should have paid only about $200 for the procedures Dr. Makhnevich did.

On August 24, 2011, Lee posted reviews of Dr. Makhnevich saying, "Avoid at all cost! Scamming their customers!" The review recounted his experience and ended, "Lawsuit to be filed soon."

After a brief exchange online the next day, Dr. Makhnevich's staff sent notices to Yelp and DoctorBase asking them to take down the review because Dr. Makhnevich owned the copyright to it. On September 12 and October 4, 2011, the office sent invoices to Lee charging him $100 per day for copyright infringement. And on October 24, an attorney for Dr. Makhnevich sent Lee a letter threatening him with "legal actions."

The contract is unlawful because it is a misuse of copyright law, said Levy. "It's using copyright to suppress truthful expression rather than encouraging original creation," he said.

In addition, asking Lee to sign the contract was a breach of fiduciary duty on the part of Dr. Makhnevich because he was in a vulnerable position when he came seeking her help for the toothache, Levy said.

Also, the offer not to share information with marketing services was misleading because Lee's information was already protected by the Health Insurance Portability and Accountability Act (HIPAA), said Levy.

Finally, the contract isn't necessary because Dr. Makhnevich could have sued Lee for defamation if he criticized her untruthfully, Levy said.

Dr. Segal said Medical Justice had marketed the contracts because federal law makes it impossible to sue online review sites. Doctors have rarely been successful in suing patients directly for the comments they post.

But the company has found a better alternative, said Dr. Segal. It is now marketing a system by which practitioners can give their patients iPads and ask the patients to post reviews anonymously immediately after a visit.

The system is better for practitioners because they can benefit from the feedback, and because an occasional bad review actually gives more credibility to the overall set of reviews, Dr. Segal said.

Levy said a system in which patients write reviews while still in a doctor's office could raise some of the same fiduciary questions as the contracts, but he declined to comment on the Medical Justice program until he learned more about it.

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