The case highlights the growing role that social media is playing in professional circles, and dentists' fears about the impact of such sites on their reputations.
A class-action lawsuit filed November 29 in the U.S. District Court for the Southern District of New York claims that a form Stacy Makhnevich, DDS, had patients sign prior to treatment violates New York law, misuses federal copyright laws, and violates dental ethics.
The complaint was filed by the Public Citizen Litigation Group on behalf of Robert Allen Lee of Huntingtown, MD, who went to Dr. Makhnevich's Manhattan office with a toothache in October 2010.
Before treatment, Lee was asked to sign several forms, including a "Mutual Agreement to Maintain Privacy" that claimed the Health Insurance Portability and Accountability Act (HIPAA) contains "loopholes" that allow dentists to use patient information for marketing purposes. HIPAA does not contain any such loopholes, according to Public Citizen.
“What began as a case of a sore tooth is now showcasing an unconscionable practice.”
— Paul Alan Levy, Public Citizen attorney
Even so, a company called Medical Justice markets these forms to medical professionals as a way to help prevent patients from making negative comments that may adversely affect their practices, according to Public Citizen. Some 3,000 doctors and dentists use its products, including these particular forms, the company said.
By signing the agreement, Dr. Makhnevich promised not to use any of Lee's information for marketing purposes. In return, Lee agreed not to denigrate or disparage her on the Internet or other broadcast media, according to the complaint.
Even though Lee wondered why he was being asked to sign such a form and whether it was even legal, he complied.
"I had been in excruciating pain for almost a week, and I didn't have time to find another dentist," he stated in an email to DrBicuspid.com.
Wrong insurance company
Lee was also told he would have to pay Dr. Makhnevich directly for his treatment and that her office would send the treatment plan to Delta Dental for reimbursement, according to the complaint.
He was charged $4,766 for two office visits, including a single filling. Dr. Makhnevich's office subsequently submitted the claim, but told him it was rejected. Lee contends the claim was purposely sent to the wrong company.
"At first, I thought they were just incompetent, sending the insurance claim to the wrong company," he told DrBicuspid.com. "Now I fully believe they did it intentionally because their agreement with the insurance company says they must accept what the insurance company gives them as full payment. Since they charged me 25 times the going rate, they have violated that agreement."
Lee then asked for his records so he could submit the claim himself, but Dr. Makhnevich referred him to a third party that demanded 5% of the total bill for copying the records, according to the lawsuit.
As a result of his dealings with Dr. Makhnevich, in August 2011 Lee posted negative comments about her on several websites, including Yelp and DoctorBase. The next day Dr. Makhnevich sent Lee a letter warning that he had violated the agreement he had signed prior to treatment and threatening to sue him for breach of contract and copyright infringement, according to the complaint.
The following month Dr. Makhnevich sent letters to the two websites demanding that Lee's comments be removed. The letters also disclosed Lee's personal information, a HIPAA violation, the lawsuit claimed. But the websites refused to remove the comments, saying they regard purported copyright assignments as legally unenforceable, according to the complaint.
Dr. Makhnevich then began sending invoices to Lee charging him $100 per day for copyright infringement. She also sent another letter threatening to sue him.
"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."
Stifling public criticism
The lawsuit, which Public Citizen believes is the first to directly address the issue of restricting online criticism, seeks an injunction against imposing the agreement on Dr. Makhnevich's future patients and a declaration that the agreement with Lee is null and void.
In addition, the lawsuit alleges that requiring patients to sign the agreement violates dental ethics and is a breach of the dentist's fiduciary duty because it puts her interests above those of her patients. It also misuses copyright law to stifle public criticism, according to the complaint.
"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."
Dr. Makhnevich did not immediately respond to calls seeking comment.
Lee's case is not the first involving online criticisms of dental care providers. In May of this year, a California dentist who filed a defamation case in 2009 over negative reviews on Yelp was ordered to pay $80,000 in attorney fees to a young patient's parents, whom the dentist had sued for the online comments.
And in July, Facebook shut down a page created by an angry parent upset at a California dentist who allegedly mistreated his son during a tooth extraction.
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