A plastic surgeon broke federal law when he restricted patients from posting negative reviews by requiring them to sign nondisclosure agreements before they received care, a district judge has ruled.
Seattle-based surgeon Javad Sajan, MD, ran afoul of the Consumer Review Fairness Act (CRFA) by requiring more than 10,000 patients to sign the agreements, according to an April 12 decision by US District Judge Ricardo S. Martinez. The law protects consumers’ rights to post truthful reviews about businesses.
Judge Martinez wrote that the terms of Sajan’s nondisclosure agreements “clearly include language prohibiting or restricting patients from posting negative reviews,” in violation of CRFA. Penalties for the offense will be determined at a September trial.
Medscape Medical News contacted Sajan’s office and his attorney for comment but did not get a response.
The decision is the latest development in an ongoing legal dispute between Sajan and the state of Washington over whether the surgeon’s efforts to limit negative online reviews were illegal.
Beginning in 2017, Sajan and his practice, Allure Esthetic, introduced agreements that “forced” patients to contact the business directly if they had concerns rather than post a negative review, according to a 2022 lawsuit against Sajan filed by Washington Attorney General Robert Ferguson.
“Online reviews are often the first stop when consumers are determining who to trust,” Ferguson said in a statement. “That’s especially critical when those services deal with a patient’s health and safety. We will take action against those who illegally stop Washingtonians from sharing reviews with the public.”
If patients posted negative reviews, the clinic, in some cases, threatened litigation, according to the complaint. In other cases, patients were allegedly offered money and free services in exchange for taking the reviews down. Patients who accepted cash or services were required to sign a second agreement forbidding them from posting future negative reviews and imposing a $250,000 penalty for failure to comply, according to court documents.
In court documents, Sajan’s attorneys argued the agreements did not violate CRFA because patients had the opportunity to modify the language or decline signing them, which hundreds did. The CRFA requires Ferguson to prove that consumers lacked a meaningful opportunity to negotiate the terms, attorneys for Sajan argued in court records.
But Judge Martinez wrote that the patients who declined to sign the agreements or changed the terms represented only a “tiny fraction” of the affected patients.
The agreement language restricts patients from speaking out by forcing dissatisfied patients to work with Allure until a resolution is reached, Martinez noted in his decision. “At the very least, this would delay patients from posting such reviews and force patients to interact in some way with Allure, and it certainly appears to prohibit posting reviews until Allure agrees to some kind of favorable resolution.”
Surgeon Posted Fake Positive Reviews to Counteract Bad Reviews, AG Says
Employee accounts in court documents describe a physician fixated on reviews who went to great lengths to ensure positive reviews about his work outweighed the negative.
Former employees said they were instructed to track down patients who left negative reviews and either “threaten” them to take the posts down or offer them “money” or other things, according to Ferguson’s lawsuit. If patients could not be identified, the practice would file a defamation lawsuit against the anonymous person who posted the review and use litigation to subpoena the website for the reviewer’s IP address in order to identify them, according to court documents.
Employees testified they had regular meetings to review current negative reviews and discuss what steps they were taking to get them removed. At team meetings, in-house counsel would regularly present an Excel spreadsheet with updates on progress in getting patients to remove negative reviews, according to court documents.
In addition to restricting negative reviews, Ferguson accuses Sajan of posting fake positive reviews and “buying” thousands of fake followers on social media.
At Sajan’s direction, employees created Gmail accounts using stock photos for their profile pictures and used the accounts to post fake reviews of Allure Esthetic and Sajan, according to the complaint. The practice also used members of an online forum called BlackHatWorld.com to create fake email accounts and to post fake reviews, the attorney general alleges. Many of the fake positive reviews, including the fake Google reviews, still appear on online review sites today, the attorney general contends.
Sajan and his practice also allegedly manipulated social media to appear more popular. Ferguson claims that Sajan instructed his former web designer to purchase 60,000 followers through a vendor on BlackHatWorld.com. Most of Sajan’s current Instagram followers are not real, according to Ferguson.
The practice also used a social media bot tool to buy thousands of fake likes on Instagram, YouTube, and other social media, according to court documents.
In addition, Sajan and his practice are accused of significantly altering “before and after” photos of patients and using fake email accounts to allow the clinic to take skincare rebates intended for patients.
All of these practices violated HIPAA, the state Consumer Protection Act (CPA) and the federal CRFA, according to Ferguson.
Surgeon Claims Competitor Behind Allegations
Attorneys for Sajan argue a competitor is behind the accusations and that other regulatory entities determined the practice did nothing wrong.
The competitor, a Seattle-based plastic surgeon, filed numerous complaints about Sajan to the Washington Medical Commission (WMC), according to court documents. The medical commission reviewed the third agreement and closed its investigation, finding that if the allegations were true, “no violation of law occurred,” court records show.
“Defendants relied upon this closing code from the WMC that the (non-disclosure) forms were lawful,” Sajan’s attorneys wrote in court documents.
The US Department of Health & Human Services Office for Civil Rights (OCR) also reviewed and audited the Sajan’s use of the agreements, his attorneys noted. In a notice from OCR included in court exhibits, the agency wrote that all matters at issue have now been resolved through the practice’s voluntary compliance actions and that it was closing its investigation.
Attorneys for Sajan accuse Ferguson and state investigators of withholding the full extent of the competitor’s involvement in their investigation and failing to identify the competitor in written discovery or any of its initial disclosures. Sajan and his team discovered that the competitor was a source of key information through public records requests, according to court documents.
The remaining claims against Sajan will be addressed at trial, set for September 9, 2024.
Alicia Gallegos is a freelance healthcare reporter based in the Midwest.
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