You Shouldn’t Need a Copyright Lawyer to Pick a Dentist–Lee v. Makhnevich (Forbes Cross-Post)

By Eric Goldman

In October 2010, Robert Lee needed a dentist, pronto.  He didn’t realize he needed a copyright lawyer to help him pick a dentist.

In search of urgent pain relief, Lee contacted Dr. Stacy Makhnevich (a preferred provider under Lee’s insurance plan).  Dr. Makhnevich’s office required Lee to sign a “Mutual Agreement to Maintain Privacy” before it would treat him.  This agreement–based on a form contract sold by a North Carolina company called Medical Justice–prohibits patients from posting online reviews of the dentist; and if the patient does write a review, the agreement says the dentist owns the review’s copyright.  In exchange, the dentist promises not to ask the patient if it can sell the patient’s name to marketers–a worthless promise, as HIPAA already requires the dentist to obtain patients’ permission before selling their information to marketers.  (Elsewhere, I’ve explained why I think asking patients to restrict their future reviews is unethical, probably illegal, and a bad business decision).

Lee just wanted dental services, and not surprisingly he wasn’t in much of a mood to negotiate the ownership of copyrights in works that Lee hadn’t even written yet.  So like hundreds of thousands of other Americans, Lee signed a Mutual Agreement to Maintain Privacy so he could get the dental services he urgently needed.

Later, Lee became unsatisfied with his interactions with the dentist and posted critical online reviews to Yelp, DoctorBase and other websites.  Apparently unhappy with the reviews, the dentist invoked the Mutual Agreement to Maintain Privacy and claimed copyright ownership over those reviews.  The dentist sent Lee draft versions of lawsuits claiming $100,000 in copyright infringement damages.  The dentist sent Lee invoices claiming copyright damages of $100 per day for his infringement.  The dentist also sent takedown notices to Yelp and other websites, threatening to sue them for copyright infringement if they didn’t remove Lee’s posting.  (To its credit, Yelp stood behind its user and declined to remove the review, accepting the risk of being sued for Lee’s purported copyright infringement).

Lee didn’t fold under this pressure; instead, he sued the dentist to void the contract.  In a recent ruling, the court rejected the dentist’s attempt to dismiss Lee’s lawsuit.  The court didn’t conclude that Lee will win (that question hasn’t been raised yet), but the opinion isn’t good for the dentist.  The court frames the lawsuit in skeptical terms:

This lawsuit about a toothache and a dentist’s attempt to insulate herself from criticism by patients has turned into a headache. After appealing to his dentist for pain relief, Plaintiff Robert Allen Lee, ironically, is appealing to the court for relief from his dentist.

Elsewhere, in response to the dentist’s argument that there’s no real dispute between the parties, the court disparages the dentist’s argument as “specious” and “ridiculous” in light of the dentist’s “constant barrage of threats.”  Rhetoric like this typically is a leading indicator of future adverse rulings.

This ruling is particularly noteworthy because we almost never see legal battles involving the Mutual Agreement to Maintain Privacy.   When confronted with a doctor or dentist’s threats involving the agreement, most patients quickly back down and remove their online reviews.  In the rare situations where the patient doesn’t back down, some doctors and dentists acquiesce rather than test the contract’s strength in court.  This case got to court only because the dentist sought so aggressively to assert the contract rights and Lee decided to fight rather than fold.  Though we’ll have to see how this case turns out, the dentist probably made the wrong choice.

Meanwhile, after a public interest organization (Center for Democracy & Technology) filed a complaint about Medical Justice’s practices with the Federal Trade Commission, Medical Justice unilaterally declared that it had “retired” the contract and advised its customers to stop using its form.  Indeed, Medical Justice has done a complete reversal on its customers.  Having persuaded its customers that patient reviews should be suppressed, Medical Justice (under a new brand, eMerit) is now selling doctors and dentists a service to help them increase the number of online reviews from patients.  Medical Justice’s customers would have been much better served encouraging patient reviews from the beginning; many of those customers are now woefully behind their competition in generating a credible quantity of patient reviews.

Despite Medical Justice’s credibility-defying flip, Medical Justice was so effective at persuading doctors/dentists to fear patient reviews that some doctors and dentists are still using the form agreement.  Should your doctor or dentist present with such a form, you don’t need to call your copyright lawyer.  Instead, refuse to sign the form, tell your doctor or dentist that the form agreement is unethical and probably illegal, and send them a copy of the recent ruling.  Or, tell the doctor/dentist that you’re going to take your business to a healthcare provider with more enlightened views about patient reviews.

If you’re a doctor or dentist wondering how to deal with patient reviews, elsewhere I’ve offered some suggestions.

Case Citation: Lee v. Makhnevich, 2013 WL 1234829 (S.D.N.Y. March 27, 2013).  The initial complaint.

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