Nov. 30, 2011 at 6:59 PM ET
A Maryland man who had a bad toothache has filed a class-action lawsuit against his New York dentist after she required him to sign a contract promising not to trash-talk her online -- and then fined him thousands of dollars trying to enforce it.
Lawyers for Robert Lee, 42, this week asked a New York federal court to declare that dentist Stacy Makhnevich’s contract, which effectively attempts to gag patient reviews, is unethical, invalid and illegal.
Within hours, the complaint filed by the advocacy group Public Citizen had prompted the company that designed Makhnevich’s contract to advise dentists and doctors to stop trying to muzzle negative comments posted on online sites such as Yelp, RateMD.com and others.
“We retired the form,” said Dr. Jeffrey Segal, a neurosurgeon and founder of Medical Justice Services Inc., a North Carolina firm that claims to battle medical defamation for a fee. “We probably should have retired the agreement earlier, but today’s the day we did it.” He added that he’s telling his 3,500 members to stop using the contract in the future.
The move drew praise from Paul Alan Levy, the lawyer representing Lee, but he said that Lee’s case against Makhnevich will continue and that the issues it raises remain.
“We’re glad to see that Medical Justice is not going to be peddling this agreement in the future,” Levy said.
Makhnevich did not respond to calls from msnbc.com and it was not immediately clear whether she planned to continue enforcing the contract. A professional opera singer, Makhnevich bills herself as "the classical singer dentist of New York."
She was among hundreds of medical professionals nationwide in recent years who refused to care for patients unless they signed anti-defamation contracts. In the contracts, the doctors and dentists promised not to evade federal patient privacy protections in exchange for patients’ agreeing not to post public comments about them.
Lee sought help from Makhnevich last year after he developed an infection and severe toothache. He went to her office in agony, he says, and, although he questioned terms of the contract, he needed to be treated. So he signed.
“It was a situation of duress,” said Levy.
In Lee’s case, the contract not only demanded that he not post negative comments, it included a clause that said Makhnevich owned the copyright to any critical posts.
Lee said he didn’t think anything of that until months later, when he said he discovered that Makhnevich had overcharged him by about $4,000 for his care, submitted his records to the wrong insurance company and then refused to provide copies of the records so he could submit them correctly himself.
Frustrated, he posted complaints on medical sites that included Yelp and DoctorBase.
“Avoid at all cost! Scamming their customers!” read one post published in August.
Lee, who has since moved to Huntingtown, Md., said he also posted comments that said: “Honestly, how do you live with yourself? Just try being a decent human being.”
Within days, Makhnevich demanded that the sites remove the comments and threatened to sue Lee. She also said he was infringing on her copyright provisions and started sending invoices for fines of $100 a day. By October, the total topped $4,600, he said.
Yelp and other sites have consistently refused medical providers’ demands to remove offensive comments, citing protections under the federal Communication Decency Act.
The copyright claim was ridiculous, because posting patient comments is a classic fair use under the federal Copyright Act, Levy said. And privacy protections afforded by the Health Insurance Portability and Accountability Act, or HIPAA, are legally binding, regardless of whether a patient agrees to refrain from publicly posting negative comments, according to the federal Office of Civil Rights.
It’s not clear whether Lee’s lawsuit will spell an end to medical gag-order contracts, but Levy said the quick action by Medical Justice was “gratifying.”
“It is outrageous that a patient would have to sign away his constitutionally protected right to get treatment for a toothache,” he added.