• A Promise Not To Criticize
  • December 9, 2011 | Author: Jamie B. Dokovna
  • Law Firm: Becker & Poliakoff, P.A. - Miami Office
  • Who likes being criticized? I don't think anybody likes it, but people have a right to their opinions - that is unless you are a patient of a medical professional who requires you to sign a contract agreeing that you won't criticize them.

    That's what Robert Lee found out when he went to see Dr. Stacy Makhnevich for a toothache.  Lee developed an infection and severe toothache so he went to see Dr. Makhnevich.  Before providing treatment, Dr. Makhnevich required him to sign an agreement.

    The contract provided that Lee would not post any negative comments about her and further provided that she owned the copyright to any of these negative posts.  In exchange, the agreement provided that Dr. Makhnevich would not evade federal patient privacy rights.  While Lee claims he questioned the terms of the contract, he signed it anyway because he was in pain and needed treatment.

    Several months later, Lee discovered that he had been overcharged by Dr. Makhnevich by over $4,000, that she provided records to the wrong insurance company, and then refused to provide him with copies so he could correct the mistake.

    Being completely frustrated, Lee posted his complaints on the Internet telling readers to "avoid at all cost! scamming their customers!"  In response, Dr. Makhnevich demanded that he remove the posts and began fining him for infringing on her protected copyright.

    As a result, Lee filed suit arguing that the contract was unethical, invalid, and illegal.  Within hours, Medical Justice Services, Inc., the company that created the form, retired it.  Dr. Jeffrey Segal, who founded Medical Justice Services, added that "we probably should have retired the agreement earlier but today's the day we did it.

    Although I have not see the form, it seems completely absurd.  First, doctors are required by HIPPA to keep medical information private regardless of whether the patient agrees not to post negative comments.  Second, patients are entitled to free speech and the use of such postings is completely permissible under the Copyright Act.

    Personally, I think it makes more sense to do good work and to keep your patients happy, rather than having them sign a form agreeing not to post negative comments about you on the Internet.  Further, the fact that the contract was retired within hours of the lawsuit being filed speaks volumes about how Medical Services, Inc. views their form.  Apparently, it's not worth the paper it was written on.