Do you remember the recent situation where a man was being fined by his dentist for every day a negative review he wrote about her remained online? A lawsuit that has been filed as a result of this situation could, potentially, put an end to medical gag orders that were designed to suppress online rants.
It all began with a toothache. A man in Maryland, named Robert Lee had a toothache, (from a painful, infected, cavity in his tooth). He required dental treatment. He selected a dentist named Stacy Makhnevich, who required him to sign a privacy agreement before she would see him. If he did not sign the form, then the dentist wouldn’t help him.
Since Robert Lee was in a great deal of pain, he decided to sign the form. One could argue that he was under duress when he signed it. It is easy to see how a person who is experiencing pain would be unable to read over the entire form that he was signing.
Later, after receiving treatment, Robert Lee learned that the dentist, Stacy Makhnevich, overcharged him by around $4,000. She also submitted his records to the wrong dental insurance company. She also refused Robert Lee’s request that she provide copies of his records to him so that he could submit them to the correct insurance company himself.
Frustrated by this, Robert Lee did what many of us would do in this situation. He went online, and left a negative review of dentist Stacy Makhnevich on Yelp, and DoctorBase.
In retaliation, dentist Stacy Makhnevich decided to charge Robert Lee $100 each day that the negative reviews he wrote remained online. She sent him invoices, that eventually totaled to more than $4,600. She also threatened to sue him, saying that his comments violated her copyright and provisions. In other words, she felt he violated the form that she made him sign before she would treat him.
There are hundreds of medical professionals, all across the United States, who require patients to sign anti-defamation contracts before the doctor or dentist will treat them. In general, the agreement says that the doctor, (or dentist), promise not to evade federal patient privacy protections. In exchange, the patient who signs the form agrees not to post public comments about that doctor or dentist.
The form signed by Robert Lee was a bit different. The form stated that dentist Stacy Makhnevich would own the copyright to any critical posts that were made about her online. In reality, patients are allowed to post comments because it is considered a fair use under the federal Copyright Act.
Also, doctors, dentists, and other health care providers are required to protect the privacy of patients anyway, (even if they don’t require patient to sign a form before treatment is administered). That protection is given to patients through the Health Insurance Portability and Accountability Act, (which is also known as HIPAA).
The patient protections that are in HIPAA are legally binding, even if the patient choses to post negative comments about the treatment that he received from the dentist (or doctor). Therefore, there is some potential that the lawsuit filed by Robert Lee, against Stacy Makhnevich, could put an end to the use of these medical gag-order forms.
Image by Brian Turner on Flickr