NY Dentist Sued For Making Patients Sign Privacy Agreement That They Could Not Rate Or Opine Her Treatment; Including Online!

New York Dentist Stacy Makhnevich, who practices in Manhattan, specializes in providing her services particularly to singers and musicians who play wind instruments. She requires patients to fill out a “Mutual Agreement to Maintain Privacy” form at the onset of treatment which REQUIRES patients to refrain from criticizing the dentist publically.

Particularly this is aimed at preventing patients from speaking on online blogs, forums, or review sites. Remember back in September, I had multiple blog sites about the benefits (and downfalls) of these types of services. In sum and substance, I concluded that those websites were beneficial and helped increase transparency but were certainly subject to abuse from physicians (signing in multiple times to boost their scores or, vice-versa, aggrieved patients).

Here, to make the deal seem more “fair” and reasonably, Dr. Makhnevich, in return, agrees to not sell the patients confidential information to third parties like marketers. BUT this is ALREADY illegal for her to do that under that small thing called HIPAA (Health Insurance Portability and Accountability Act)!

This is a one-way street. Patients can talk about the good and bad about a doctor but it is ILLEGAL for a doctor to do this to a patient. Essentially, the dentist is having patients sign something that is already in effect, but changing it to fit her own liking.

So why is this even an issue? Because one patient had a bad experience about the administrative functions of Dr. Makhnevich’s office (with insurance and billing) and posted about it online where the dentist immediately sent him a letter notifying him of his breach of the “mutual” agreement. The dentist then proceeded to charge him a fee for every day he had left the negative comments up online. The patient then filed a lawsuit against her, which evolved into a class action lawsuit filed in the United States District Court for the Southern District of New York; a federal courthouse.

So while today’s post is not per se about medical malpractice, this conduct by a doctor in connection with treatment is something else we need to be aware of to protect patient’s rights. This is outrageous for her to allow herself to break the law to abridge the rights of her patients; her patients who are paying HER! Moreover, in the era of the Affordable Care Act and the movement to increase transparency in our system, this is just a giant steps backwards!

This also reminds me that a lawyer in their retainer agreement (the agreement a client signs at the onset of the representation which defines the services, basis of pay, scope of representation, etc) cannot give themselves greater rights to do something against the law or professional rules. For example, the ethics committee said that a New York lawyer could NOT create more grounds for withdrawal of representation (something difficult to do) then the professional rules already allow for!

I hope that this lawsuit is successful—and not just to punish the dentist from doing this, but to make sure NO other doctors do this. We want to know about medical malpractice and how the quality of care a physician gives to a patient to other patients can make educated decisions.