Wednesday, October 07, 2009

Surgeon is a limited purpose public figure, so website was not defamation.

The website that couldn't be stopped by a defamation suit.
Gilbert v. Sykes

Ca. appeals court rules plastic surgeon can't sue over critical web postings
By USA, Lawyers
Publication: Lawyers USA
February 12 2007

A plastic surgeon could not bring a suit for defamation against a former patient who created a website critical of the cosmetic facial procedure he performed on her, the California Court of Appeal has ruled in reversing the denial of a motion to dismiss.
The patient filed a malpractice suit alleging that a brow lift performed by the surgeon left her unable to fully close her eyes, with one eyebrow higher than the other, and with a permanently "surprised" on look her face. In addition to suing the surgeon, the patient created a website showing her before and after photos. On the website, she recounted her experience with the surgeon, saying it had been a "nightmare" and the "biggest regret" of her life.

When surgeon filed a cross-complaint alleging defamation, the patient moved to dismiss under the state's Strategic Lawsuit Against Public Participation law.
In arguing that her website was protected by the First Amendment, the patient contended that the surgeon qualified as a limited purpose public figure because he had appeared on television and published numerous books and articles on plastic surgery. Accordingly, the patient asserted, the surgeon was required to show actual malice.

The court agreed, explaining the surgeon's "sought-after prominence as an expert in and advocate for plastic surgery as a means of personal enhancement transformed him into a limited purpose public figure. As such, statements alleging that his surgical procedures resulted in disfigurement or required expensive multiple corrective surgeries are entitled to constitutional protection."

The court concluded that the surgeon could not show actual malice here because the patient's before and after photographs were substantially accurate representations of what took place regarding her surgery and therefore "were not defamatory as a matter of law." It further concluded that the surgeon's allegations that the website misrepresented his communications with the patient both before and after surgery were "far too vague and amorphous to support a cause of action for defamation."

Gilbert v. Sykes (Lawyers USA No. 9935032) California Court of Appeal, 3rd District No. C050766. Jan. 26, 2007.

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