A Patient Sues His Dentist Over a Contractual Ban on His Posting Negative Online Reviews of Her Work: Why His Class Action Appears to Have Merit
In this column, I will discuss the growing trend of doctors, dentists, and other healthcare providers using contracts—typically, contracts provided by the company Medical Justice—in an attempt to decrease or eliminate the negative reviews that are posted about them on popular consumer-ratings websites.
I will focus, in particular, on a recent consumer class action lawsuit that challenges such contracts, and then go on to describe other measures that have been taken, or suggested, in this area.
The Class Action Suit
The consumer class action lawsuit at issue makes the following allegations:
Robert Lee visited a dentist, Stacy Makhnevich, because he was suffering from a severe toothache, caused by a painful infected cavity. She refused to treat him until he signed a so-called “privacy” contract, which included a clause preventing him from posting negative reviews of her online.
More specifically, the contract stated that Lee would not publish adverse comments about Makhnevich’s performance online, and that he would assign the copyright of any online commentary that he did make to her (presumably so that she could have such commentary quickly and directly taken down if she found it objectionable).
Lee signed the contract. But later—after receiving a hefty bill for service that he viewed as problematic—he posted negative reviews of the dentist on Yelp.com and DoctorBase.com, despite the contract’s ban on such postings.
The Yelp.com review said: “Avoid at all cost! Scamming their customers!” The DoctorBase.com review was similar.
Lee claims that Makhnevich then– in an attempt to enforce the contract—tried to get Lee’s negative reviews taken down from the review sites. He alleges that she also started billing him $100, as a fine, for every day the reviews remained on the Internet. Moreover, Lee alleges, she refused to send copies of his billing records to him so that he could seek reimbursement from his insurer. Makhnevich also sent Lee a notice threatening a lawsuit. In response, Lee filed a lawsuit of his own.
Lee’s Consumer Class Action Lawsuit
Lee’s lawsuit calls the contract he signed invalid under state law as an unconscionable contract. The lawsuit also alleges that posting one’s own commentary on a website such as Yelp.com or DoctorBase.com constitutes “fair use” under the copyright laws.
In the suit, Lee asks that the agreement that he and other patients signed with his dentist be declared void and unenforceable, and that she be barred from requiring assent to these agreements by future patients.
Medical Justice, the Company That Supplied the Contract
The agreement at issue was supplied to Makhnevich by Medical Justice, a North Carolina-based company that offers legal advice and reputation protection services to physicians. Founded by a doctor, the company has the mission of assisting doctors in dealing with negative patient evaluations and managing their online reputations.
Since the suit was filed, Ars Technica reports, Medical Justice has said that it will “retire” the contracts with which Lee’s suit takes issue, and will advise current clients not to use them, given the pending litigation.
On its website, the company states, “Medical Justice is a membership-based organization that offers proven services and proprietary methods to protect physicians’ most valuable assets—their practice and reputation.”
The site describes the organization’s services as follows: (1) Deter frivolous malpractice claims; (2) Address unwarranted demands for refunds; (3) Prevent Internet defamation, and (4) Provide proven, successful counterclaim strategies to hold proponents of frivolous suits accountable.
The Key Clause in the Medical Justice Agreement at Issue
The contract at issue in Lee’s case, provided by Medical Justice, reads, in relevant part, as follows:
“Patient will not denigrate, defame, disparage, or cast aspersions upon the Physician; and (ii) will use all reasonable efforts to prevent any member of their immediate family or acquaintance from engaging in any such activity.”
Moreover, as discussed above, under Lee’s contract a so-called gag order clause restricts the patient’s ability to comment or post reviews online, and there is also a veto clause that assigns to the doctor the copyright of all online reviews that the patient posts.
Is the Medical Justice Contract Valid—in Lee’s Case, and More Generally?
Lee may be able to argue that the contract he himself signed was unconscionable—that is, it “shocks the conscience” and therefore is void and unenforceable. He can argue that, after being handed the contract and told to sign while he was in pain and in need of urgent attention, he had no real alternative but to sign. On those facts, the inequality of bargaining power between the parties seems clear. (Indeed, the gross inequality of bargaining power here might even result in the contract’s being deemed an invalid “contract of adhesion.”)
But what about cases where patients do not need urgent medical attention, and yet are handed such contracts to sign, and opt to sign them? Even then, there is still a strong argument for unconscionability: Patients trust their doctors, who famously have a duty to “do no harm.” Yet if doctors can “gag” or silence their patients, they are barring future patients from knowing the truth about their services.
Moreover, patients’ trust for their doctors may mean that they do not even really bother to read the contracts they sign. And, finally, one can argue that a patient who is not in pain, but who needs care, should not have to sign such a contract as the price of being treated.
Public policy considerations also cut against such contracts. Review sites function as a means of consumer protection, and these contracts attempt to stifle legitimate consumer commentary.
Moreover, there may be an even more basic problem with the Medical Justice contracts. A contract requires an offer, acceptance and consideration. Patients like Lee may not truly be accepting the contract, since they are in pain and may believe they have no choice but to sign. And for all patients who sign the contracts—whether they are well or ill at the time they sign—there is an issue about the existence of “consideration.”
In contract law, consideration is defined as a thing of value that each party gives to the other as a reason for entering into a binding agreement. Consideration may be tiny, and courts generally do not look into the value of consideration, but consideration must exist. The Medical Justice contract mentions enhanced patient privacy as the purported consideration patients receive, but shouldn’t all patients receive the same—and the utmost—level of confidentiality? In other words, is Medical Justice offering patients, in its contracts, only what they were already entitled to?
Finally, the clause in the Medical Justice contract in which the doctor purports to assume the copyright to a patient’s reviews is likely also void, for a different reason. Many copyright experts have concluded that such contractual assignments of copyright would not stop a customer from posting his or her own review; that could still be done, they argue, as a matter of the “fair use” doctrine, which provides certain exceptions to copyright law.
While the Class Action Lawsuit Is Pending, What Resources Can Patients Who Are Asked to Sign Such Contracts Consult?
Organizations that value consumer rights and online freedom are fighting back against gag-order doctor/patient contracts. For instance, students and faculty at Santa Clara and UC Berkeley Law Schools have started a website called “Doctored Reviews,” arguing that anti-review contracts are bad for doctors, patients and review websites alike.
The Doctored Reviews site also offers practical tips to avoid these contracts; advises patients as to why they should refuse to sign them; and urges patients to remind their doctors of their duty to “do no harm.”
The site also takes issue with the contracts’ claim (mentioned above) that the doctor provides consideration in the form of enhanced confidentiality. It points out that federal and state health-privacy laws already mandate strong privacy protections, and argues that implying otherwise, by offering supposedly greater protections, is ethically suspect.
It also notes that requiring patients to sign anti-review contracts potentially conflicts with the American Medical Association (AMA) Code of Ethics, by placing doctors’ financial interest above the welfare of their patients. (Opinion 8.03); and violates patient confidentiality when doctors identify their patients by name in order to enforce medical gag orders against them. (Opinion 10.01(4)).
As a possible last resort, the website also advises consumers to vote with their wallets and take their business elsewhere—specifically, to a doctor who does not require them to sign such contracts. And it notes that patients can file a complaint with the relevant consumer protection and professional licensing agencies if a doctor does require them to sign such a contract in order to receive care.
The Center for Democracy and Technology’s FTC Complaint Against Medical Justice
Moreover, just after Thanksgiving, the Center for Democracy and Technology (CDT) filed a complaint against Medical Justice with the Federal Trade Commission (FTC) and states’ attorneys general.
The FTC complaint alleges that Medical Justice has committed deceptive and unfair business practices in violation of the FTC Act. The concerns are that, by prohibiting online reviews, doctors are banning patients from warning others about problems they might have had; and that doctors who use the contracts have an unchecked veto power, allowing them to remove reviews they think are unfair—regardless of the truth or merits of the comments. CDT alleges that these practices are not only unethical, but also illegal.
CDT believes that Medical Justice’s prior restraints on patients’ speech are unconscionable and unenforceable under contract law—and the group notes that typically, you can only contractually bind someone not to speak freely if there’s a trade secret or other confidential information at stake. It also claims that the contracts are “unfair” under FTC law, because they “harm current patients by threatening their free speech rights and future patients from getting valuable information about the doctors to whom they’re considering entrusting their medical care.”
The group also reasons that patients can’t reasonably avoid the dilemma these agreements pose. CDT states: “After you’ve taken off two hours from work to see a doctor about your blinding toothache, are you really going to leave and try to find another dentist, who’ll only see you next week, in order to preserve your ability to write a review that you don’t even know you want to write yet?”
CDT is also asking the FTC to investigate claims that Medical Justice is seeding consumer-review sites with misleading positive reviews about their member dentists and doctors. Both RateMDs.com and Yelp.com, have uncovered apparently positive reviews being uploaded about doctors from Medical Justice servers. Medical Justice claims that all of these reviews were solicited from patients of the doctors and dentists who are its members, but according to news reports, it is unclear whether all the reviews—or all the elements of the positive reviews (such as the star ratings)—are provided by real customers.
Online reputation management will be an increasingly important issue for doctors and other service providers as we become more reliant on the Internet to locate such professionals. But managing one’s public image should not be achieved through attempts to stifle legitimate commentary and the exchange of information. Courts and regulators need to take a hard look at these contracts, and consider the consequences of allowing doctors to bar patients from speaking frankly and openly about the treatment they receive.