If there’s one thing we can all agree upon, it’s that health care costs are expensive-so expensive, in fact, that many Americans avoid treatment unless absolutely necessary. For that reason, it’s especially important to select doctors known to provide quality health services. However, unlike choosing products from a store shelf, choosing quality doctors can be a daunting task. Not only does health care quality vary considerably among regions, hospitals, and providers, but significant information gaps persist in the health care sector as well. Accordingly, patients need a reliable method to make informed decisions regarding their health care.
The emergence of websites permitting online reviews was thought to bridge the information gaps to a certain extent. After all, patients could provide feedback to the public through an online review system regarding quality of services rendered by doctors. In this manner, patients could make informed health care decisions after reading reviews submitted by actual patients. However, a recent opinion issued by Judge Crotty in the Southern District of New York in a case against dentist Stacy Makhnevich suggests that online reviews may not tell the full story.
While suffering from a toothache in 2011, Robert Lee relied on Makhnevich’s services to cure the problem. A subsequent billing issue with Makhnevich’s office led Lee to post negative online reviews regarding his experience. The issue being considered in the case centers on an agreement that Makhnevich makes with all of her patients. The agreement purports to transfer to her a copyright in online reviews published by each of her patients relating to dental services she’s performed. If valid and enforceable, such an agreement may give Makhnevich the right to order various websites to remove commentaries posted by her clients. This presents a threat to the transparency and credibility of the review process since the posts most likely to be removed are those critical of services performed.
Up to this point, the merits of the case have yet to be decided. However, Makhnevich’s agreements present a number of legal issues that will need to be resolved. First, the agreements may be unenforceable under contract law, meaning that any attempted transfer of copyrights in the reviews would have no effect. Practically speaking, such a finding would leave Makhnevich with no power to censor the reviews. Determining whether a contract is enforceable requires a consideration of various factors, including, but not limited to, terms of the particular contract, the existence of unexplained fine print, and the level of consumer ignorance. For instance, if the provision relating to copyright transfer were buried in a lengthy contract, the courts may refuse to enforce it. Second, even if the copyright transfer is valid, the fair use defense may limit Makhnevich’s rights. Fair use is a doctrine that enables non-copyright holders to reproduce copyrighted works for purposes of criticism and commentary. Posting online reviews about the quality of a professional’s services would almost certainly fall within this exception. Third, the copyright take down notice that Makhnevich sends in an effort to remove online commentary is valid, if at all, only against patients who signed the contract. This creates a problem when online forums allow users to post anonymously or with customized usernames since it may be difficult to trace names on the contracts to usernames on the reviews.
Either way, a patient should exercise caution when confronted with such a contract. Health care decisions are some of the most personal and important choices we as humans are required to make. Therefore, we can’t have doctors controlling the availability of these reviews. So, do me a favor: when you see a contract with language similar to the one mentioned above, run as fast as you can in the opposite direction-if not for yourself, do it to empower others to make reasoned health care decisions after considering both positive and negative reviews.