There are a number of “silencer” contracts that have been marketed to dental and medical professionals as a means of keeping bad reviews from patients off of the internet. Typically these agreements provide that in exchange for maintaining the confidentiality of the patient’s medical records the patient agrees not to make any critical reviews of the professional services received on the internet. These agreements also sometimes provide that the patient assigns his or her future intellectual property rights in reviews of the professional to the professional so that the professional can require web sites to “take down” adverse reviews.
Recently, the New York law firm of Debervoise & Plimpton and the Public Citizen Litigation Group from Washington, D.C. filed an action in federal court in the Southern District of New York challenging the legality of such an agreement. In the case, Robert Allen Lee v. Stacy Makhnevich, 11 cv 8668, Dr. Makhnevich, a dentist, had Mr. Lee sign such an agreement. According to Mr. Lee she charged him $4000 for a $200 procedure and then failed to bill his insurance company and also refused to provide him with his dental records so that he could do it himself. Mr. Lee, frustrated and angry, posted unkind reviews of Dr. Makhnevich on Yelp and Dr. Base. She in turn had her staff send “take down” notices to those sites and sent threatening demands for compensation for breach of contract to Dr. Lee.
Mr. Lee’s class action complaint alleges his “fair use” under section 107 of the federal Copyright Act 17 U.S.C., 101 et seq., breach of fiduciary duty, violation of dental ethics, lack of consideration and multiple requests for declaratory relief. In a related case filed with the FTC, In Re Medical Justice Corp. filed on November 29, 2011, the principal company that marketing these agreements is being challenged for engaging in deceptive and unfair business practices in violation of Section 5 of the FTC Act.
Good professional service and responsiveness to patient needs and complaints is a much simpler, effective and cheeper alternative to “Silencer” contracts in the world of social media.
http://op.bna.com/hl.nsf/r?Open=mapi-8p6s68.
http://op.bna.com/hl.nsf/r?Open=mapi-8p6s7l.
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