Dentist Drills Toothy Patient for Painful Online Review

Posted December 16, 2011 in Consumer Law by Arthur Buono

Internet lawyer, Enrico Schaefer, Traverse legal, blog

Enrico Schafer of Traverse Legal

Dentists and doctors increasingly are policing what you say online about their services. In the most recent case, a prominent New York dentist, Dr. Stacy Makhnevich, threatened to sue a former patient, Robert Lee, over a negative review Lee posted to Yelp!, an online review website.

The tables have turned though, and now Lee and his lawyers are biting back with a class action against Makhnevich. The case involves something new: A patient gag agreement.

Open Wide and Shut Up

Enrico Schaefer, a leading internet commerce attorney, explains.

“A company called Medical Justice has been marketing these agreements to doctors and dentists for a while now as an anti-defamation product.” It’s a legal form called a “Mutual Agreement to Maintain Privacy.”

Schaefer continues, “Basically it’s what’s called an ‘adhesion’ contract. The medical or dental practice will demand a patient sign it as a condition of receiving the health care.” So it’s take it or leave it. If you’re suffering miserably and need immediate treatment, you’ll sign. Even if you’re not, chances are you’ll sign anyway. But don’t think it’s just another form.

painful procedure at the dentist, blogSigning Away Your Right to Complain: a Sketchy Proposition

By signing the form, the patient agrees not to criticize the health care provider publicly, including on any internet sites. In return, the provider promises not sell  a patient’s confidential information to third parties. That promise isn’t worth a dime legally, because the federal Health Insurance Portability and Accountability Act (HIPPA) prohibits this already. Finally the form requires the patient to assign the patient’s copyright in any online comments the patient makes about the provider.

“These agreements are legally suspect,” says Schaefer. He notes they touch a lot of sore spots in the law. “They’re adhesive,” he says, meaning the patient hasn’t got the ability to negotiate them. “They’re against public policy, including the right to free speech, to comment about and rate these service providers.

“They’re also ethically questionable,” he continues. “Certainly lawyers couldn’t get away with this, because it would impair a client’s right to make an ethics complaint.” Yet in the health care field, Schaefer notes it’s “uncharted territory.”

Then there’s the copyright assignment. Dr. Makhnevich tried to use this to have Lee’s comments taken down. “That’s also suspect,” Schaefer explains, “assigning a copyright in something that’s not yet been created or even contemplated.”

Combating Online Criticism, or Taking it in Stride

Schaefer gets about 200 calls a month with questions about internet commerce. “Half of them,” he says, “involve online defamation claims. It’s the biggest thing on the internet.”

As we’ve pointed out before, the internet did not repeal the law of defamation. Comments on a blog or website remain fully exposed just as if the defamation were printed or spoken.

But people are legally free to offer opinion, to comment and criticize, but only short of the line where their speech contains false and defamatory statements of fact. So as has happened in another case, a patient’s statement that people should “avoid [a dentist] like a disease” is not defamatory — because it doesn’t make a statement that can be proven true or fals. But the same patient’s statement that the dentist failed to advise her about mercury in her fillings, when the dentist in fact had, is defamatory – because it states a fact that can be proven false.

Schaefer, who represents medical and dental practices, says the gag agreement is a bad idea, even as a matter of common sense. “We advise our clients, ‘don’t do it.’ It’s really not necessary. Doctors and dentists in general are among the most respected and liked professions.”

Schaefer points out that consumers are pretty savvy when considering online reviews. On the one hand, consumers know not all reviews are credible. On the other hand, they realize not everyone or everything can be perfect. So if a dentist or, say, a restaurant, has largely favorable reviews, a consumer is likely to discount the outliers claiming the dentist was rude or the steak was overcooked.

And “By trying aggressively to squelch negative reviews,” says Shaefer, “a dentist or doctor risks a ton of negative publicity.” Tell that to Dr. Makhnevich.

Art Buono is a news reporter for the blog.

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