Woman Wins Right to Criticize Surgeon on Website

Scoopy writes "The website of a cosmetic surgery patient critical of her Sacramento surgeon's work is protected free speech, an appeals court said in an opinion that could have statewide implications. The website contains before and after photographs of 33-year-old Georgette Gilbert, who said the surgery left her with one eyebrow higher than the other and a surprised look permanently affixed to her face. The website was challenged in a defamation suit filed by surgeon Jonathan Sykes, a prominent professor and television commentator on the subject of cosmetic surgery. Although the Sacramento-based 3rd District Court of Appeal only mentions Sykes, the opinion suggests that others who use 'hot topics' of public interest in their advertisements and promotions may shed protections against defamation afforded to ordinary citizens."

Comments

Link to the website

[magicchex]

Here's a link to the actual website, http://www.mysurgerynightmare.com/

For those who do not want to register

[afaik_ianal]

The Web site of a cosmetic surgery patient critical of her Sacramento surgeon's work is protected free speech, an appeals court said in an opinion that could have statewide implications.

The Web site, www.mysurgerynightmare.com, contains before and after photographs of 33-year-old Georgette Gilbert who said the surgery left her with one eyebrow higher than the other and a surprised look permanently affixed to her face.

The Web site was challenged in a defamation suit filed by surgeon Jonathan Sykes, a prominent professor and television commentator on the subject of cosmetic surgery.

Although the Sacramento-based 3rd District Court of Appeal only mentions Sykes, the opinion suggests that others who use "hot topics" of public interest in their advertisements and promotions may shed protections against defamation afforded to ordinary citizens.

"The decision makes it easier for professionals to get defamed and unable to defend themselves," said Daniel L. Baxter, Sykes's lawyer.

First Amendment attorney Charity Kenyon agrees that the decision's reasoning could be applied to lawyers, optometrists, Realtors and other professionals.

"The opinion is good protection for consumers who want to express opinions about services they receive, but professionals who promote themselves may have this burden if they think they have been defamed," Kenyon said.

The court decision, which was released Jan. 26, may be binding on all California counties if it's not overturned by the state Supreme Court. According to the 32-page opinion, which can be viewed here, Sykes immersed himself so much in the public debate over the merits of cosmetic surgery that he became a public figure in the subject.

Sykes, a UC Davis Medical Center professor, is also an author and has written numerous articles that have appeared in medical journals and beauty magazines. He has appeared on local television shows "touting the virtues" of cosmetic and reconstructive surgery, the decision said.

"In our youth and celebrity worshipping culture, the benefits and risks of plastic surgery are a hot topic. The number of people, especially women, who have had minimally invasive cosmetic surgery has grown exponentially in the past several years," said the opinion, written by Justice M. Kathleen Butz.

"Sykes asserts that statements on the Web site do not contribute to the public debate because they only concern Gilbert's interactions with him. He is wrong," said Butz, who was joined in the opinion with justices Ronald B. Robie and Tani G. Cantil-Sakauye.

Baxter said that several statements and representations Gilbert made on her Web site were not true or were misleading.

Baxter cited, for example, the statement Gilbert makes with her before and after photos: "I was told by my doctor that this was a good result - that I looked better after his surgery - what do you think?" Baxter said that when Sykes saw Gilbert, about 2 1/2 months after the surgery, he indicated that she was improving but "never made any indication relative to that picture, or how she was doing five months out."

Gilbert's online comments also make it sound as if she was an unwitting patient who was pushed into plastic surgery, Baxter said. In fact, he said, she "directed (Sykes) to be very aggressive in carrying out the procedures."

Gilbert's lawyer, William L. Brelsford, said true statements and personal opinions are not libelous under the Constitution's First Amendment. The decision, he said, is applying an old law to a new mode of communication.

"Protected public debate is being extended to the Internet," Brelsford said.

Gilbert posted her Web site early in 2005, a year after she filed a medical malpractice suit against Sykes. On the site, she offers advice about finding the "right" surgeon so that others can benefit from her "misfortune."

She has a contact page where readers can share their experiences.

Sykes counter-sued Gilbert claiming he was defamed, suffered emot

Re:WTF

[slamb]

Seriously how the hell could this not be construed as free-speech? I mean she is simply providing information on a service she is unhappy about in the hopes of educating others. Jeez I'm getting more and more afraid to open my mouth every day.

According to the metnews story, the court decided (and the appeals court did not dispute) that the information she is providing is not true. Among other things, her "after" picture was also after four other surgeries from different doctors. So the information was false and damaging. The appeals court said that in this circumstance, it can't be considered defamatory unless the doctor proved her intent was malicious, and he hadn't done that. Apparently the woman's just crazy...

Re:According to courtroom reporters...

[sumdumass]

Calling it a 'botch' implies that it was done badly. The only way to check this is to look at perhaps the last 1000 patients and see if his results are acceptable or not. Medical confidentiality would mean this would have to be done by internal audit, unless those patients volunteered (which would likely mean all the unhappy customers come forward, skewing results).

Well, I would add that done badly from clumsiness or from mistakes. that being said, she did win a malpractice case against him for this surgery dor around 13mill before making the website.

We heard about this back in 2006
. It was pretty amazing that she got it overturned.

Re:WTF

[zollman]

Short comment -- the rule for defamation of public figures is not "that her intent was malicious", it's that it was delivered with "Actual malice". This doesn't seem like a distinction to most laymen, but it turns out it is: "Actual malice" has a very specific legal definition in the U.S., and it doesn't require "malice".

In this case "actual malice" means "knowledge that the information was false" or that it was published with "reckless disregard of the truth". This standard comes up quite a bit in when, for example, a celebrity sues a newspaper for publishing something false and damaging. The celebrity need not prove it was published with intent to harm, only that the newspaper didn't care whether it was true or not. In this case, the appeals court ruled that the doctor was a public figure, and so this standard applies. (For a non-public figure, like a neighbor or classmate who has done nothing to seek the spotlight, the court will accept a defamation claim even without proof of actual malice.)

As with many things, the wikipedia article on actual malice is helpful in explaining this distinction, but only a real lawyer -- and IANAL -- is qualified to interpret it for you.