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Nov. 30, 2011

Note: In response to the lawsuit referenced below, Medical Justice – the company that recommended doctors and dentists require patients to sign away their First Amendment rights – has told a news outlet that it is going to stop recommending medical practiotioners do so. Said Paul Alan Levy, the Public Citizen attorney handling the case: “We’re gratified. We bring these cases to have an impact. Although we obviously still have to resolve this case with Dr. Makhnevich, we’re glad to see that Medical Justice is not going to be peddling this agreement in the future. We wonder, will Medical Justice now go to its clients and let them know that it is now advising against using this provision? We certainly hope so.”

Requiring Patients to Give Up Right to Criticize Medical Practitioners Is Unconscionable, Lawsuit Says

Public Citizen Represents Maryland Man in First-of-Its-Kind Suit Against New York Dentist

WASHINGTON, D.C. – A New York dentist’s requirement that patients sign a contract agreeing not to criticize her is unconscionable, and the dentist should be prohibited from forcing patients to make such a promise in the future, Public Citizen said in a lawsuit filed late Tuesday.

The suit highlights a growing trend: doctors and dentists conditioning medical care on patients promising not to post negative comments about them online. The pledges are contained in paperwork that patients must sign before the doctor or dentist will see them. Public Citizen represents Robert Allen Lee, a Huntingtown, Md., resident and former patient of the New York dentist, Dr. Stacy Makhnevich.

A North Carolina company called “Medical Justice” sells forms containing these conditions to medical providers, marketing the forms as an effective way to prevent negative comments that may have an adverse effect on their practices. Medical Justice has been quoted as claiming that about 3,000 doctors and dentists use its products, including these forms. This lawsuit is believed to be the first over the provision restricting criticism. 

Moreover, the provision the dentist required the patient to sign in the case purported to give the dentist ownership of the criticism through a copyright clause. And Makhnevich has claimed that by posting criticism online, Lee was violating the copyright clause and so owes Makhnevich $100 a day.

“What began as a case of a sore tooth is now showcasing an unconscionable practice in which doctors and dentists force patients to leave their constitutional rights at the office door,” said Paul Alan Levy, the Public Citizen attorney representing Lee. “If people are upset about their care, they have a First Amendment right to tell people about it – by going online and posting their thoughts on Yelp, Facebook, Twitter and the like.”

The case began in October 2010, when Lee developed a severely sore tooth. The next month, he went to Makhnevich, whom he selected because the practice was covered by his insurance. Before he could be treated, he was handed forms to sign. One of them required Lee to agree not to publish any commentary about the dentist, not to disparage the dentist and to assign copyright to the dentist for any commentary that Lee wrote. Lee was reluctant to give up his right to publish commentary, but he was in severe pain and so signed the form.

Makhnevich billed Lee $4,766 for the dental work performed. Lee paid and asked the dentist to send the necessary paperwork to his insurance company, but the dentist sent the information to the wrong insurance provider. Lee then asked for his records so he could submit the claim himself; Makhnevich refused and instead referred Lee to a third party that demanded five percent of the total bill for copying the records.

In August 2011, Lee criticized Makhnevich on Yelp, DoctorBase and other online sites. The dentist then sent Lee a letter warning that Lee had violated the agreement and threatened to sue Lee for breach of contract and copyright infringement. The next month, Makhnevich contacted Yelp and DoctorBase and demanded Lee’s comments be removed. The review sites refused to remove the comments, because they regard purported copyright assignments as legally unenforceable. Makhnevich then sent invoices to Lee for $100 a day for copyright infringement in September and October, and sent another letter threatening to sue Lee.

This suit, which seeks class-action status, contends that the agreement Lee was required to sign is unconscionable and should be declared null and void. Further, requiring patients to surrender the right to publish truthful criticism violates medical practitioners’ duty to patients because they are placing their own interests above those of their patients. In addition, the agreement misuses copyright law to suppress expression.

“It is outrageous that a patient would have to sign away his constitutionally protected right to get treatment for a toothache,” Lee said. “I have to wonder what this dentist’s other patients have said to make her feel it was necessary to go to this extreme.”

Bruce Keller and Jeffrey Cunard of the New York-based law firm Debevoise & Plimpton LLP are co-counsel with Levy in the case.

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