Company withdraws contracts controlling online comments by patients

Medical Justice Inc. is retiring its "vaccine against libel," a set of contracts providing authority to doctors over online comments posted by patients.

The contracts' demise follows a complaint made to the Federal Trade Commission alleging that Medical Justice is engaging in unethical business practices. A dentist is being sued for using one of the agreements.

The complaint and the lawsuit were filed on Nov. 29, 2011.

A day later, Medical Justice announced it will end its use of the contracts, said neurosurgeon Jeff Segal, MD, CEO and founder of Medical Justice. The company has informed its 3,000 physician and dentist members that the contracts are retired. Medical Justice recommends that doctors use its latest online tool -- the eMerit system -- to combat false posts and protect their reputations. But Dr. Segal said members are "free to do what they want to do," which includes continuing to use the contracts if they see fit. He said the company has not suggested that doctors call their patients to inform them of the contracts' retirement.

The contracts accomplished their goal of encouraging patient feedback and highlighting the problem of false online comments, but now is the time to retire them, Dr. Segal said. The contracts were "honest, ethical, and legal -- period," he said. "Having said that, we are going to use [the FTC] situation as an opportunity to retire the written doctor-patient agreements. We had already planned this action because we have the better, computer-based eMerit system. However, to remove any confusion about old and new versions of the agreements ... now seems an appropriate time to eliminate the statements altogether."

Medical Justice launched the agreements in 2007, recommending that doctors have patients sign them before visits. Initially, the contracts said patients would not post online comments without doctors' consent, a condition Dr. Segal now says was "pretty harsh and restrictive." The contracts were revised several times over the years. In the latest version, patients allowed doctors copyright permission to remove posts if the comments violated rules set by online review sites.

However, Harley Geiger, an attorney for the Center for Democracy & Technology, said all versions of the Medical Justice contracts abused copyright terms and were unfair and deceptive. The CDT, a public interest organization that advocates free expression and privacy in communications technologies, asked the FTC to investigate Medical Justice for using the contracts.

Medical Justice misled patients into believing the contracts protected their privacy and would deter people from posing as patients and writing false reviews, Geiger said.

"The problem is, if you are not a patient and you are in fact writing a fraudulent review, you would not have received the contracts," he said. "We argued [the contracts] are an unfair trade practice that harms consumers as well as ratings sites and the contracts themselves did not in fact give patients any kind of control over the reviews they were uploading to sites."

An FTC spokeswoman said she could not confirm whether the agency was reviewing the CDT's complaint. Medical Justice has not been contacted by the FTC, but welcomes any discussion from the agency about the agreements, Dr. Segal said.

Meanwhile, a patient is suing Stacy Makhnevich, DDS, of New York for allegedly invoking a Medical Justice contract to stop him from posting online comments about her services. Makhnevich, also a professional opera singer, is known for her work treating musicians, particularly wind instrument players and classical singers, calling herself "the classical singer dentist of New York," according to her website.

Robert Allen Lee claims Makhnevich overcharged him for a tooth filling in 2010, according to a lawsuit filed in the U.S. District Court for the Southern District Court of New York. He signed a Medical Justice contract with the dentist before agreeing to treatment. After his visit, Lee posted comments on websites about his experience. Makhnevich allegedly demanded that he remove the comments, sent him $100 invoices for each day the postings remained active and threatened to sue him for copyright infringement based on the contract, according to the lawsuit.

Lee is asking the court to declare the agreement void and grant an injunction preventing Makhnevich from imposing the agreement on other patients.

The contract is an abusive invocation of copyright law and harms free speech, said Paul Alan Levy, an attorney for Public Citizen, a consumer advocacy group that is representing Lee.

"Agreements like the one at stake in the Makhnevich case turn copyright law on its head by taking advantage of the fact that, as a practical matter, ideas and facts are articulated through copyrightable expression; hence anything that a patient writes about a doctor or dentist is likely to have sufficient originality to be copyrighted. ... This is a misuse of copyright law, and in our view it needs to be stopped," he said.

Medical Justice is providing for Makhnevich's legal defense, but it is not a party in the suit. Makhnevich referred American Medical News to her attorney. At this article's deadline, the attorney had not returned phone calls seeking comment.

Since Makhnevich's dispute with Lee, negative online ratings of the dentist have significantly increased, according to a check of Internet review sites.

Dr. Segal said the dentist was using an older version of the contract and that she created additional clauses that were never promoted by Medical Justice. The organization does not advocate suing patients, he added. Still, he said Medical Justice believes the contract used by Makhnevich will pass legal muster.

"Absent to any other facts that I may not be privy, the [lawsuit] does not have merit and [the dentist] will prevail," he said.

In hindsight, he said the company probably should have retired the agreements with the inception of its eMerit system, which surveys patients about their medical visits. With patients' permission, it uploads the comments to review sites. The surveys are provided during appointments. About 100 doctors have used the system so far, Dr. Segal said.

"The key is making these surveys bite-sized and getting just enough information from the patient and getting this information back to the doctor," he said. "If there are issues, the doctor can become aware and fix the problem. We don't filter them. It really is an honest representation of the [doctor's] practice."