Going to the dentist can be an unnerving experience. It can also feel like you’re getting more than a tooth pulled if you’re asked to give up any rights to critique the dental work you’ve had done, and assign all copyrights to any comments you make about it to…the dentist.
Ouch! That hurts!
That’s what prompted patient Robert Allen Lee to sue his dentist, Dr. Stacy Makhnevich and the North Carolina company, Medical Justice, that created and sold Makhnevich patient consent forms with the restrictive language (Read the lawsuit below)
This copyright controversy isn’t new. My Justia colleague Courtney Minick noted earlier this year how Santa Clara University’s High Tech Law Institute and UC Berkeley School of Law’s Samuelson Law, Technology, and Public Policy Institute created DoctoredReviews.com “to provide consumers with information about medical contracts that purport to censor or prevent negative patient reviews online.”
The copyright issue appears to be a slam dunk. Lee’s attorneys argue that “[t]he creation and posting of Patient Comments is a classic fair use” exempt from copyright protection under 17 U.S.C. § 107 of federal copyright law.
The patient’s lawsuit charges that:
The Agreement, including the assignment of future copyrights in any Patient Comments, is unconscionable and void for that reason as well.
It’s also bad business. Just look at the storm of criticism from patients, dentists, and others on Stacy Mekhnevich, DDS’s Yelp profile after news of Lee’s lawsuit got out.
What prompted Lee’s negative criticism of the New York City dentist in the first place? For starters, Mekhnevich allegedly wanted him to pay $4,800 out-of-pocket for two office visits for a filling.
Next, the dentist reportedly told her patient to seek reimbursement from his insurance company because her dental practice wouldn’t do it for him. Nor would the office give him paperwork so that he could file a claim for reimbursement with the insurer himself. Instead, he says he was told to contact another service that wanted 5% of his total invoice just get a copy of it for him.
Defendant Medical Justice now says that it’s going “stop recommending medical practitioners” from asking patients to sign away their First Amendment rights to review and critique health care providers.
For years, many web sites have encouraged consumers continue to comment on goods and services they’ve received. Yelp are Amazon.com are perhaps the most well known sites to encourage reviews. The folks at Avvo ask visitors to rate lawyers and doctors. Maybe after Lee’s lawsuit, they’ll start adding dentists too.
You can read the allegations in the patient’s lawsuit below, and the related forms (listed as attachments to the complaint) he was asked to sign before Dr. Mekhnevich would treat him.
Don’t like going to the dentist? You might want to take a short break to go brush and floss.