

Patient sues dentist over gag order, gets Medical Justice to backtrack - binarybits
http://arstechnica.com/tech-policy/news/2011/11/patient-sues-dentist-over-gag-order-causing-medical-justice-to-drop-it.ars

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

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pavel_lishin
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.

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

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electromagnetic
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.

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Judson
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.

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SomeCallMeTim
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.

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jrockway
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.

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

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cperciva
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.)

~~~
VladRussian
>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.

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cperciva
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.)

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drcube
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.

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jarrett
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.

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pavel_lishin
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?

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eridius
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.

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nkassis
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.

~~~
kd0amg
I was under the impression that that was the definition of a "work for hire"
situation (IANAL either).

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JadeNB
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.

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umarmung
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...?

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logjam
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.

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georgieporgie
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)

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JadeNB
"… 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".

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pavel_lishin
Could have sworn this said "medieval justice".

