Medical Justice Capitulates by “Retiring” Its Anti-Patient Review Contracts

By Eric Goldman

It’s been a rough week for Medical Justice, the company that tries to help doctors suppress patient reviews. First, the Center for Democracy and Technology filed an FTC complaint alleging three main points: (1) Medical Justice deceives doctors by selling them contracts that don’t work as promised, (2) the effort to suppress patient reviews is unfair under Sec. 5 of the FTC Act, and (3) Medical Justice violates the endorsement/testimonial guidelines through efforts that appear to create fake reviews for doctors. See the CDT announcement.

Second, Public Citizen filed a declaratory judgment action against a dentist who tried to use Medical Justice’s contract to suppress a patient’s review. The dentist didn’t actually sue the patient, but she did send over a draft complaint. The DJ complaint touches on a number of interesting issues, including contract unconscionability and dentist ethics, but the copyright angles are perhaps the most interesting. See the Public Citizen announcement.

Both CDT and Public Citizen acknowledge the DoctoredReviews website, which Jason Schultz, two Berkeley students and I launched a half-year ago as a way of calling attention to the problems being created by Medical Justice’s contracts. Although I’m delighted that the website was helpful to them, I’m even more grateful that they took the website’s advocacy and turned it into action.

While the FTC complaint and lawsuit work their way through the system, they have already been effective: after going through multiple iterations of its review-suppression contracts, Medical Justice apparently threw in the towel and admitted it is dropping the contracts altogether. Timothy B. Lee at Ars Technica reports:

“While we believe these agreements are honest, ethical, and legal, we are going to use this situation as an opportunity to retire these written agreements used since 2007,” MJ CEO Jeffrey Segal told Ars on Wednesday. He claims that MJ will recommend to doctors that they stop using the agreements, and that patients will not be asked to sign any such agreements in the future.

As usual from Medical Justice, there is enough lawyer-mumblespeak in those words to leave open the possibility that they are not completely exiting the contract-distribution business. On Twitter, Timothy reiterated:

They claimed they’re retiring all versions of the agreement, and that patients won’t be asked to sign anything.

We get stronger words from this MSNBC article:

“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.

Hooray? This is exactly the outcome we sought with DoctoredReviews, but I don’t exactly feel like celebrating. First, in my mind, this result was inevitable; it was only a matter of time until Medical Justice dropped the product line. Their legal position was incoherent and ultimately untenable. Second, given their track record, I’m nervous they are just cooking up something even more diabolical and anti-patient, which might make this victory hollow.

Third, and most importantly, knocking Medical Justice out of the market doesn’t solve the underlying problem of vendors improperly using copyright law to control what’s said about them publicly. Like moths drawn to light, inevitably other businesses will continue to explore copyright-as-a-reputation-control-mechanism. So we’re going to have to keep fighting this issue until some structural change–a clear judicial precedent or legislation–makes it clear that efforts to suppress consumer reviews are unacceptable. Perhaps the results of an FTC investigation or the declaratory judgment action will provide us more certainty.

More on this topic:

* Request for Help: Doctor v. Patient Lawsuits Over Online Reviews

* Updates on and Medical Justice

* Dentist Pays Sizable Penalty for Not Knowing 47 USC 230–Wong v. Jing

* Announcing, a Website Against Doctors’ Efforts to Squelch Online Patient Reviews

* “Consumer Reviews of Doctors and Copyright Law” Talk Notes

* The Regulation of Reputational Information