Patient sues dentist over gag order, gets Medical Justice to backtrack | Hacker News Reader

Patient sues dentist over gag order, gets Medical Justice to backtrack

arstechnica.com

110 pointsbinarybits31 comments

This guy Lee, who fought back, is a hero to me. Everyone benefits when someone takes on systemic abuses of law and power. Bravo!

I wonder how he's doing financially, and whether his attorney is representing him pro bono. I live in New York, and I'd kick some money his way if he needed it.

The article says that it's a class action suit. Law firms usually take those on for a share of the punitive damages, with no cost up front.

His representation in the case provided by Public Citizen, a public interest organization that I would expect takes clients pro bono.

The real matter is what definition of 'pro bono' they're taking. Many lawyers defer payment (and won't charge if they lose) until after the completion of proceedings, however you still have to pay for disbursements (IE, filing with the court, photocopies of documents, etc) which can run into the thousands.

By the fact he paid cash and said he's not worried about getting the money back, I'm guessing he's not short on cash. Most people who are short on cash don't pursue legal action because they see it as costing too much.

Does anyone know if their are any positive merits to Medical Justice?

I always (possibly wrongly) assumed these agreements were an attempt by doctors to "level the playing field" since they would be unable to counter any negative feedback by a patient due to HIPAA.

Seems like the wrong solution to me, but I can see why doctors think they are protecting themselves from phoney reviews.

I've seen this subject come up before, and someone said that Medical Justice sells themselves pretty hard to medical professionals -- sometime places will sign on without really understanding all the details.

Hmm...would the right answer be to get the patients to sign a HIPAA privacy release for purposes of answering any reviews left of their practice?

From WikiPedia:

"A covered entity may disclose PHI...if the covered entity has obtained authorization from the individual. However, when a covered entity discloses any PHI, it must make a reasonable effort to disclose only the minimum necessary information required to achieve its purpose."

Seems doable, and reasonably fair -- if you're going to slam someone in a review, it only makes sense that they should be able to respond in their own defense. In this case the "minimum information necessary" could be something like (I'm making this up!) "My fee for coming in on a weekend day is $2000, and that was the only appt. time available" or "He is misrepresenting the services performed, and his insurance denied coverage" or some such.

In this case the dentist may not HAVE a valid excuse of course; just pointing out there MAY be another side to the story that we're prevented from hearing because of HIPAA. Food for thought anyway.

This seems like an easy problem to solve. Copyright covers the wording of the communication; it doesn't cover the ideas conveyed. Facts cannot be copyrighted. That means you can tell someone that didn't sign one of these contracts your experience with the dentist, and they can write it up on the review site for you. The dentist won't own that work and will have no grounds to claim that the author infringed his copyright.

By analogy, this is like saying "The Simpsons is a TV show about a guy named Homer." Although it would be illegal for me to give you a verbatim copy of every Simpsons episode, it's not illegal for me to tell you what happens in each.

A nondisclosure agreement might be more effective, but still wouldn't allow a bad review to be taken down by a DMCA claim. The dentist would have to go to a real court for that to happen, and I doubt a real court (or medical ethics board) would be too pleased about a contract prohibiting a patient to talk about his doctor.

Ironically, my orthodontist was considering a contract like this, but I talked some sense into him and it seems like he's not going to go through with it. And no, I wouldn't sign it; there are hundreds of other orthodontists in Chicago.

yep, toothache would make you sign anything on the spot (met the situation several years ago, though it wasn't copyright agreement situation).

I'm surprised that they didn't include a motion to declare the contract invalid on the grounds of duress. I'm not aware of any precedent for a threat to withhold medical care being considered duress, but it certainly seems to satisfy the "no true meeting of the minds" test.

(IANAL, etc.)

Is that harder to prove in a class-action suit? Unconscionability is probably an easier road than duress. I am neither a lawyer nor a dentist.

>I'm surprised that they didn't include a motion to declare the contract invalid on the grounds of duress.

success of such motion would destroy all the "pay for the service" system as you do agree to pay for the service before it is rendered - otherwise the doctor willn't provide the service. To my understanding the ER is the only place where medical care muct be rendered without any pre-condition of entering into any contract.

Not necessarily. In most circumstances there's no duress since a patient can visit a different physician. The case of someone who is in severe pain, has already waited 3 days, and has every reason to think that he might need to wait another 3 days if he opts to see a different physician is an exceptional one.

(And even in the absence of a contract, there's a quasi-contract, so a finding of duress wouldn't obviate the requirement to pay for services rendered.)

It also depends on the definition of duress. Is it how much pain the person is in (which is a psychological perception), or how life-threatening their condition is.

This guy had a severe tooth ache and I can't really gather much more FTA for what he actually had. However, there's cracked teeth and abscesses that dentists see frequently that are expected to be much more painful.

I personally just don't feel dental pain, so what are the grounds for duress with me. I found out I'd had 5 cavities, potentially for over a year (it had been around 2 years since my last dental visit because of moving country and having no benefit plan) and I had no clue.

IANAL either, but I'm guessing that winning this class-action suit would set a more useful precedent. If I'm reading the situation correctly, Lee would like to stop dentists from (ab)using this kind of gag agreement.

How do they figure a review someone posts on the internet is under copyright by the party being reviewed? That point baffles me, and I'm used to copyright making no sense.

I haven't read the contract, but I'll go out on a limb and speculate a bit. The article mentions "copyright assignment." This suggests to me that perhaps the contract assigns copyright on all future reviews to the dentist. E.g. something along these lines:

"If you write a review of our services, the copyright on said review will be immediately assigned to us."

As the patient's lawyer notes, there's a good chance that fair use and unconscionability (two different doctrines) would render such a term unenforceable.

Again, this is just speculation based on a hint in the article.

I wonder what happens if a) the hypothetical sentence carried legal weight, and b) I was then employed by someone who tasked me with writing reviews of said dentist for them.

My employer would effectively have to go to court against the dentist to see who owns the words I type, right?

IANAL, but I believe that if the copyright of the review is owned by your employer (since you wrote it for him), then you would not have the legal right to assign the copyright to your dentist, and therefore the copyright clearly remains with your employer.

But from what I've read elsewhere assignment to your employer is not automatic for works for hire jobs. So it depends on your contract.

I was under the impression that that was the definition of a "work for hire" situation (IANAL either).

Doesn't the order of operations matter here? If I sign the paper and then get hired, does my new job suddenly invalidate my contract with the lawyer?

Another funny thing about this is that assigning copyright to them would require yet another form.

I believe they have something in the contract a patient signs before services are provided which turn over copyright to any reviews.

OK, OK, it's not Reddit, I know … but, amidst all the serious discussion of this serious story, are we really not going to make even a single comment on the linguistic incongruity of a gag order from a dentist? No "I'm usually just told to 'spit'"? Then this is a sadder discussion.

I don't think I've ever seen such a flagrant abuse of fiduciary duty before!

I thought bankers were the untrustworthy ones. Now potentially your own dentist/doctor...?

I'm a physician. I'd never heard of "Medical Justice" before this story. I'm going to notify my own state Board of Medical Examiners about these kinds of gag "contracts", which in my opinion are completely unethical, if not downright slimy. Medical boards should get involved in investigating dentists and physicians who behave like this, and in taking a closer look at a company who would go after patients like this. I recommend others consider contacting their own state Board.

On a vaguely related note, I've been somewhat bothered by some television ads I've seen for reputation.com. Example:

http://vimeo.com/30825306

"Reputation.com helps you set the record state, by monitoring and managing (!) your online reviews. And repairing your online reputation if you've been attacked, by pushing down (!) false or misleading search results with truthful, positive material, putting you in control (!) of your image online." (exclamation points reflect my level of shock)

"… by pushing down (!) false or misleading search results with truthful, positive material, putting you in control (!) of your image online."

Wow, that's amazing … but I'd move the second exclamation point 4 or 6 words to the left. I'm less shocked by the idea of someone wanting to be in control of his or her online image than by the thought that it's a good thing to trust a company's idea of "truthful (!), positive material".

Could have sworn this said "medieval justice".

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