NY Dentist’s Attempt to Prevent Bad Reviews Backfires

by DonaldScarinci@yahoo.com on July 22, 2013 · 0 comments

in Consumer Law

In today’s digital world, unhappy consumers often take to the Internet to gripe about bad service. These negative reviews, whether true or not, can severely impact a business’s reputation.

The power of bad reviews prompted one New York dentist to require patients to sign a confidentiality agreement prior to treatment.  However, Stacey Makhnevich is now facing more serious claims (and negative press) in the form of a NY class-action lawsuit.

According to the complaint, Makhnevich required all patients to sign an agreement prohibiting them from authoring any critical comments about their treatment and assigning to Makhnevich the copyright to any written comments posted in violation of that prohibition. Despite signing the agreement, patient Robert Lee posted negative reviews on several websites, including Yelp, detailing how Makhnevich refused to process insurance documents and overcharged him for services.

Makhnevich responded by threatening to sue Lee for copyright infringement and even sent a draft complaint. As a result, Lee filed a declaratory action, asking the court to deem the contract unenforceable. He also requested that the court declare that his reviews were fair use under the Copyright Act.

Most recently, Makhnevich unsuccessfully moved to dismiss the suit, arguing that there was no justiciable controversy between the parties. In support of her motion, Makhnevich argued that she had not “created a real and reasonable apprehension of liability” against Lee.

Southern District Judge Paul Crotty disagreed. “Defendants created the controversy with Lee by attempting to enforce the agreement, which they extracted as a condition for getting dental treatment,” he wrote. “Further, under the totality of circumstances, the controversy is sufficiently ‘real’ and ‘immediate.’ Defendants cannot pretend now that their notices to Lee were ‘just kidding,’ or that Lee lacked any reasonable apprehension of liability,” he added.

It appears that Makhnevich and Medical Justice, the company that supplied the form contract, thought that patients would sign and abide the agreements without questioning their legality. Now that Lee has filed suit, both have reversed course. Medical Justice no longer advises doctors to use the forms, and Makhnevich claims that she never intended to file suit.

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