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Dentist-Opera Singer Gets Bad Review on Bid to Dismiss Class Action

The New York Law Journal has a report this week about developments in a proposed class action against a Manhattan dentist who required patients to sign a confidentiality agreement in which they promised not to publish negative commentary about her and to assign her a copyright over any such commentary. A federal judge in New York has firmly rejected a motion to dismiss the case, which will now proceed against Dr. Stacy Makhnevich (who is described on her website as a "dentist, artist and opera singer").

The case made news when it was filed in late 2011 by Makhnevich's former patient Robert Lee, who was dissatisfied with the dental office's failure to submit reimbursement forms to his insurance company. A day after Lee posted negative reviews of Makhnevich on websites, including Yelp and DoctorBase, Makhnevich sent him a letter stating that he had violated the terms of the "Mutual Agreement to Maintain Privacy" that he had signed before treatment. Makhnevich threatened to sue Lee for $100,000 in damages, claiming copyright infringement, breach of contract and defamation. She later sent Lee invoices charging him $100 a day for copyright infringement.

With the backing of consumer advocacy organization Public Citizen, Lee sued Makhnevich for declaratory and injunctive relief on behalf of himself and other patients, arguing that the confidentiality agreement was unconscionable and that his online comments were protected as fair use under the Copyright Act. The case put the spotlight on such "privacy agreements" and a company called Medical Justice that marketed the agreements to doctors and dentists. Medical Justice "retired" the contract just after the suit was filed.

Though the agreement wasn't exclusive to Makhnevich, other aspects of her practice seem somewhat unique. On her website, which includes a number of glamorous headshots, Makhnevich is described as "a talented and imaginative dentist and an opera singer who is driven by an incredible passion for self-expression through art." She specializes in working with singers, artists and musicians, particularly those who experience dental problems related to playing wind instruments. "Although Stacy Makhnevich loves to express her vision through art of dentistry, she is also adept at creating opera scenes and readily communicates the vision of her clientele," the website states. The headline of a Forbes piece about Lee's suit described Makhnevich as a "Dentist to the Stars."

In the latest development in the class action, U.S. District Judge Paul Crotty issued a sharply worded order rejecting Makhnevich's argument that the case should be dismissed because there was no "actual controversy" between the parties. "Defendants created the controversy with Lee by attempting to enforce the agreement, which they extracted as a condition for getting dental treatment," Crotty wrote. "Further, under the totality of circumstances, the controversy is sufficiently 'real' and 'immediate.' Defendants cannot pretend now that their notices to Lee were 'just kidding,' or that Lee lacked any reasonable apprehension of liability."

Posted by Laurel Newby on April 18, 2013 at 04:14 PM | Permalink | Comments (3)

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