A patient has filed a class-action lawsuit against his New York dentist over her attempts to use copyright law to gag the patient's online reviews of her services. Robert Lee, who recently moved to Maryland, has asked a New York federal court to declare that his comments are protected under copyright's fair use doctrine, that the dentist's attempts to gag him breach dental ethics, and that the "privacy agreement" the patient was forced to sign is invalid and illegal under New York law.
We first covered this type of agreement back in May, after your correspondent was asked to sign a similar agreement by a Philadelphia dentist. The agreement is provided to doctors and dentists around the country by an organization called Medical Justice. They have reacted to the announcement by backpedaling furiously, telling Ars Technica that they will be "retiring" the agreement effective immediately.
A patient in pain
Lee told Ars that the controversy began last year, when he spent a weekend camping in Alabama. He developed a toothache so severe that he visited a local hospital. He was given painkillers, and when he returned home to New York on Monday he called Dr. Stacy Makhnevich's office to schedule an appointment. They couldn't see him until Thursday, and he says he had to take sleeping pills that week to allow him to sleep through the pain.
When he arrived for his appointment, he was required to sign a "Mutual Agreement to Maintain Privacy" before he could receive treatment. Lee says he understood the contract, but he was in intense pain, and "I couldn't think of any way a dentist would want to screw me over, so I went ahead and signed it."
After Lee signed the contract, Makhnevich drained his tooth and, on a subsequent visit, put in a filling, charging $4,800 for the two procedures. According to Lee, she demanded that he pay for the procedures out of pocket, but promised to submit documentation to his insurance company to allow him to be reimbursed.
But he says Makhnevich's office never submitted the necessary documentation. And when Lee requested a copy of his records so he could submit a claim himself, he was asked to pay hundreds of dollars for a copy of his own dental records.
Frustrated, Lee posted reviews on Yelp and other websites. "Overcharged me by about $4000 for what should have been only a couple hundred dollar procedure," he wrote. "Refuses to submit the claim to my insurance company. When asked for records to submit the claim myself they referred me to a 3rd party that wants 5% of the bill ($268) to get the records for me."
Makhnevich responded by invoking the "privacy agreement," demanding that Lee remove his reviews. A letter dated October 17 stated that "according to The Ethics of Medical Justice/Dental Justice Agreements, under the Code of Internet Ethics, your comments are not considered constructive commentaries but rather as personal attacks to the office's well-being and reputation." It promised that "all legal possible actions will be taken against you."
Makhnevich's office also began sending him invoices purporting to charge him $100 for every day the reviews remained online. And they submitted a takedown request to Yelp and other sites under the Digital Millennium Copyright Act.
Class-action lawsuit
Lee didn't back down. After reading our earlier coverage of the issue, he contacted Paul Alan Levy of Public Citizen, who agreed to represent him and help him file a lawsuit against Dr. Makhnevich.
The filing is a class-action lawsuit, representing Lee and all other Makhnevich patients who have signed Medical Justice-style contracts. It asks the court to declare that forcing patients to sign the contract constitutes a breach of "fiduciary duty and violations of dental ethics." It also argues that the contract deceives patients by promising not to use patient information for marketing purposes, despite the fact that (according to the complaint) such disclosures are already barred under the Health Insurance Portability and Accountability Act. And it asks the court to declare that the contract is unconscionable and void under New York law.
As for the copyright claims, the complaint asks the court to declare that, even if the copyright assignment is valid, the posting of the reviews is allowed by copyright's fair use doctrine.
Finally, it seeks a declaration that Lee's online posts are nondefamatory, and it seeks compensation for Makhnevich's failure to submit the insurance paperwork as promised.
Lee says he hopes the lawsuit will allow him to recover the nearly $5,000 he lost due to the billing dispute. But he says he's even more concerned with holding Makhnevich accountable for her misconduct. "I'm not as concerned with getting the money back as I am with the way they've treated me," he said. "Every step of the way they've been trying to screw me over, and I can't think of why. I showed up for my appointment and paid my bills on time. I don't get it. These seem like bad people to me."
Levy, who is representing Lee, tells Ars that now that the lawsuit is filed, Makhnevich won't be able to get rid of it merely by settling her billing dispute with Lee. Lee is seeking to be a representative plaintiff for all of Makhnevich's patients who signed the agreement. That means any resolution will need to be equally broad. Levy is hoping to set a precedent that will benefit others asked to sign similar agreements around the country.
Medical Justice backpedals
We made two calls to Dr. Makhnevich's office, but these were never returned. We did receive a response from Medical Justice.
"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.
"I'm gratified," Levy said when we told him of MJ's decision to drop the agreements. "But I think there's another question that they need to think long and hard about. They must have been thinking of these issues [before Lee's lawsuit was filed]. When did they let their customers know they were having doubts?"
We asked Segal if he was planning to offer representation to Makhnevich. "We provide the agreements," he said, "it's up to our clients how they decide to use it," he said.
We pressed him on this, pointing out that this might make doctors nervous about using MJ's legal services if the organization left clients (as Levy put it) "high and dry."
"Maybe you misunderstood what I said," he said. "I'm not saying there won't be any interests served here. I'm just receiving the information. We do have an interest in the outcome of this case. My guess is we will have an involvement." But he said they hadn't made any decisions about what support, if any, to offer to Dr. Makhnevich.
Levy tells Ars that declining to support Makhnevich would reflect poorly on Medical Justice. "If they don't provide a legal defense, dentists and doctors are going to learn they're being set up like suckers," he said. Given MJ's hasty "retirement" of its "privacy agreement," he questioned whether customers should trust Medical Justice's advice with regard to other legal products.
The lawsuit against Makhnevich isn't the only headache Medical Justice has to deal with this week. As we reported yesterday, the Center for Democracy and Technology has also filed a complaint with the FTC arguing that MJ is engaging in "deceptive and unfair business practices" with its use of the agreements.
Listing image by Photograph by D. Sharon Pruitt
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