Patient gag orders and the Medical Justice contracts have been heavily discussed recently. If you are not up to date with Lee v. Makhnevich et al., Robert Lee was a patient who had a bad experience with a dentist named Stacy Makhnevich. During his visit, he signed a contract (supplied by a company called Medical Justice) that essentially prevents him from writing negative reviews. Lee later posted a negative review anyways on Doctorbase and Yelp, leading Makhnevich to charge Lee $100 a day for what she claimed was infringement of copyrighted material. In response, Lee filed a declaratory relief lawsuit against the dentist.

We have always supported the view that these patient gag order contracts are invalid. After Lee filed the lawsuit, Medical Justice itself retired the contracts and recommended that they would no longer recommend that doctors have their patients sign them. I took this as an admission from the creators of the contracts that the contracts lack legal standing.

Makhnevich (and her attorneys), however, appears to stand by her claims and has filed a motion to dismiss on February 14, 2012 in response to Lee’s lawsuit. The majority of the motion relates to jurisdictional and procedural issues. Makhnevich asserts that the lawsuit should be dismissed because Lee did not assert that the copyrights are not registered, and registration is required in copyright infringement cases.

Why hasn’t she registered them then? My guess is that she likely knows that there is a good chance she can’t register, since Lee himself wrote the comments. It would simply be ridiculous for a doctor to own the copyright for all future reviews of their patients. My question is then, is Makhnevich knowingly making false threats to try and deter negative reviews?

That’s when we get to the next part. Makhnevich states that she has not “created a real and reasonable apprehension of liability” against Lee. She admits that she threatened to file suit and sent Lee invoices, but this was all not a real and reasonable apprehension of liability because Makhnevich never actually sued or turned it over to a collections agency. It sounds like Makhnevich admitted that she made threats of litigation merely to deter and remove the negative reviews. Makhnevich calls her own acts as “empty threats” that she never acted on.

This sounds like exactly what Medical Justice (and now Makhnevich) have been doing all along. They created these contracts that are essentially patient gag orders solely to prevent and deter negative reviews. They never had any intent to enforce them because they likely knew or had doubts about the validity. In the motion, she even admits that her own demand letter for $100,000 to Lee was inaccurate and that actual damages may be much lower (around $4,000). I, for one, am glad that Lee is standing up to such intimidation tactics.