Over the past few years, there has been a growth in the number of websites that allow customers, clients and patients to critique companies, services, and professionals, as well as an increased ability for people to use social media to express opinions, even anonymously. Since those with “gripes” tend to be more likely to get up on the internet soapbox, and reviews, therefore, may lean more negatively than supportive, at least one individual has gone on the offensive. A New York dentist, Stacey Makhnevich, required all of her patients, including Robert Lee, to sign an agreement preventing them from making public comment about her services. Interestingly, in “return” for this restraint of speech, Dr. Makhnevich promised not to do something that the law actually already requires of her, that being, not to exploit certain loopholes in the Health Insurance Portability and Accountability Act (“HIPAA”) with regard to patient privacy.
Mr. Lee had a toothache and sought treatment from Dr. Makhnevich. Before treatment, however, she required that he sign this privacy agreement. He did. He was then personally billed almost $5,000 for dental services when the doctor’s office neglected to bill the insurance company for reimbursement. This put Mr. Lee on the hook for the entire bill, much to his surprise. When Lee sought copies of his dental records, Dr. Makhnevich referred him to a third-party company which demanded $200 for a copy of his records. Not surprisingly, Mr. Lee was unhappy about this incident, and recounted his experiences on several websites where such reviews are accepted from the public. He criticized Makhnevich for overcharging him, refusing to submit billing to his insurer, and told about the issue with the medical records, all of which were apparently true statements of fact. In response, Dr. Makhnevich sent Lee a demand letter threatening to sue and seeking $100,000 in damages. She then began issuing invoices to Lee charging $100 per day for “copyright infringement” which stated that a 1.5% late charge and a service charge of $20 would be imposed if not paid within 7 days.
Lee filed a pre-emptive suit in federal court. Dr. Makhnevich responded with a motion to dismiss, taking the position that there was no controversy. The court rejected this argument and denied the dentist’s motion to dismiss, citing the dentist’s aggressive attempts to enforce the agreement, using choice words and phrases such as “ridiculous, and “specious,” and one not often seen in judicial opinions…“wishful thinking.” Mr. Lee’s case therefore remains pending before the court.
Although it may be tempting to try to use the force of law to fend off public criticisms of a business, profession, or service, it is certainly not clear that such a heavy-handed approach would be effective in that regard. In fact, such efforts will invariably become public themselves, and are likely to be viewed as bad faith attempts to suppress one’s “freedom of speech” and hide honest opinions about poor service or conduct. Dollar-for-dollar, it would seem that a business or professional would likely get a better return from an investment into efforts designed to improve customer service, rather than suppression of customer speech. After all, clients or customers who are unhappy are going to ultimately have their say, and clearly have a right to their opinions and to publicize them, whether via the internet, the water cooler, a social gathering or up on a real soapbox in the public square. Better that they should have a very simple and limited issue of general dissatisfaction than to be able to say that the business is trying to shut them up.
We will follow Mr. Lee’s case as it develops to see if the Judge makes good on his prophetic statement that this dentist’s arguments may be wishful thinking. Lee v. Makhnevich, No. 11 Civ. 8665 (PAC), (S.D. New York, March 27, 2013).