A number of dentists who fear what effect a negative review on a site like Yelp can have on their business have been compelling patients to sign “privacy agreements” that aim to stop annoyed customers from going public with their complaints. But one patient has decided that these agreements go too far, especially after his comments on Yelp resulted in his dentist coming after him for money.
The man originally claimed on Yelp and other sites that his dentist had overcharged him and screwed up submitting his claims to his insurer.
But these comments didn’t sit well with the dentist, who used the agreement the patient had signed to demand that the reviews be pulled down because they “are not considered constructive commentaries but rather as personal attacks to the office’s well-being and reputation.”
When he did not take down the comments, the patient then began receiving invoices for $100/day that the reviews remained online.
Oh, and the dentist invoked the Digital Millennium Copyright Act in an attempt to get Yelp to remove the review.
So rather than cave, the patient has filed a class-action lawsuit representing all the dentist’s patients that signed the privacy agreement.
It asks the court to declare that forcing patients to sign the contract constitutes a breach of “fiduiary duty and violations of dental ethics.” It also argues that the contract deceives patients by promising not to use patient information for marketing purposes, despite the fact that (according to the complaint) such disclosures are already barred under the Health Insurance Portability and Accountability Act. And it asks the court to declare that the contract is unconscionable and void under New York law.
As for the copyright claims, the complaint asks the court to declare that, even if the copyright assignment is valid, the posting of the reviews is allowed by copyright’s fair use doctrine.
Meanwhile, Medical Justice, the company that produced the agreement that this dentist and many others have used, has decided to retire this particular contract.
“While we believe these agreements are honest, ethical, and legal, we are going to use this situation as an opportunity to retire these written agreements used since 2007,” the company’s CEO said in a statement yesterday.
Patient sues dentist over gag order, gets Medical Justice to backtrack [ArsTechnica.com]
Thanks to Dan for the tip!