Dentist Sued for Enforcing Contract on Online Reviews
A patient is suing a dentist for enforcing a contract that restricts patients from publicly commenting on her practice. The lawsuit, filed in US District Court for the Southern District of New York, accuses Stacy Makhnevich, DDS, of violating the rights of patient Robert Allen Lee by threatening him with a lawsuit for posting critical comments about Dr. Makhnevich on 2 online review sites.
Patient sues dentist who charged him for bad reviews
Negative Yelp Reviews: Lawsuit A dentist based out of Manhattan, New York has been sued for allegedly trying to prevent her patient from criticizing her on the social networking and user review website, Yelp.com. Dr. Stacy Makhnevich, who holds a second job as an opera singer, is being sued in a Manhattan Federal Court by former patient Robert Lee.
On November 4, 2010, a toothache prompted Lee to visit Dr. Makhnevich’s office where he was told he would have to pay directly but that the office would submit paperwork so he could be reimbursed by his insurer. Among the papers he was given to sign was a “Mutual Agreement to Maintain Privacy,” in which Dr. Makhnevich promised not to share information about Lee with marketing firms, and Lee promised in return not to comment on her practice. If Lee did comment, the contract transferred copyright on his comments to Dr. Makhnevich.
The idea is that if the doctor or dentist doesn’t like the review, they can then just use the DMCA to take it down, claiming that the review infringes on their copyright. Yes, this is incredibly sleazy. This clearly has nothing to do with copyright, but rather it’s a use of copyright law to try to censor criticism. There are both ethical and legal problems with this… and the legal problems are about to be discussed in court.
Public Citizen has filed a class action lawsuit against a New York dentist, Stacy Makhnevich, who not only used the Medical Justice forms, but then sent one of her patients invoices, supposedly billing him $100 per day for having posted comments about her online. As Paul Alan Levy explains:
Our individual client, Robert Lee, had a bad experience, not with Makhnevich’s dental work, but with her billing and her failure to submit the documents he needed to get reimbursed by insurance. After his repeated efforts to get her office to do what they were supposed to do, he posted complaints on Yelp and on DoctorBase. Makhnevich threatened to sue him over the posts, and sent DMCA takedowns, but no doubt to her surprise, not only did the patient not remove his comments, but both Yelp and DoctorBase defied the threat of infringement liability, telling Makhnevich that they regarded her agreement with the patient as illegal. Undeterred, Makhnevich sent Lee invoices purporting to bill him $100 per day for the continued copyright infringement. Makhnevich also hired a lawyer who sent additional threats of litigation, but rather than continue to wait to be sued, Lee has now filed suit for a judgment declaring the agreement void, an injunction preventing Makhnevich from imposing the agreement on other patients, and a notice to all Makhnevich patients informing them that they are no longer restrained by the agreement.
Lee signed the papers, and Dr. Makhnevich “drained the infection,” restoring the tooth at a subsequent appointment. For these procedures, Lee paid Dr. Makhnevich $4766. Subsequently, the dentist’s staff filed the claim to the wrong insurance company and never corrected the error, the lawsuit says. When Lee asked for records so he could submit the claim himself, the staff referred him to a third party that wanted to charge him more than $200 for the records, it says. Later Lee conferred with another dentist who told him he should have paid only about $200 for the procedures Dr. Makhnevich did.
On August 24, 2011, Lee posted reviews of Dr. Makhnevich saying, “Avoid at all cost! Scamming their customers!” The review recounted his experience and ended, “Lawsuit to be filed soon.” After a brief exchange online the next day, Dr. Makhnevich’s staff sent notices to Yelp and DoctorBase asking them to take down the review because Dr. Makhnevich owned the copyright to it. On September 12 and October 4, 2011, the office sent invoices to Lee charging him $100 per day for copyright infringement. And on October 24, an attorney for Dr. Makhnevich sent Lee a letter threatening him with “legal actions.”