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Woman Wins Right to Criticize Surgeon on Website 250

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."
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Woman Wins Right to Criticize Surgeon on Website

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  • by magicchex ( 898936 ) <mdanielewicz@gma ... m minus math_god> on Thursday February 08, 2007 @01:10AM (#17930816)
    Honestly, she looked fine before the surgery. She claims she was at a low point in her life and so on, and didn't even consider surgery till only 3 weeks before she got it. What do you expect when you make such a serious decision on such short notice while admittedly depressed?
  • WTF (Score:4, Insightful)

    by WiiVault ( 1039946 ) on Thursday February 08, 2007 @01:11AM (#17930818)
    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.
  • Title Correction: (Score:5, Insightful)

    by the_REAL_sam ( 670858 ) on Thursday February 08, 2007 @01:14AM (#17930832) Journal
    You mean to say "woman defends right to criticize surgeon on website." She cannot win what she already had.

  • by gnurfed ( 1051140 ) on Thursday February 08, 2007 @01:25AM (#17930934)
    Slightly off topic, but what's really sad in this story is that the woman was pretty BEFORE the surgery. So there was really no reason for her to go under the knife in the first place. We live in a scary world where people strive to look unnatural (though this woman probably didn't get the unnatural looks she wanted).

    That said, it's great that we have plastic surgery for patients with actual disfigurements.

  • by Feyr ( 449684 ) on Thursday February 08, 2007 @01:25AM (#17930938) Journal
    she looked like crap before, and she still look like crap after.

    her eyebrows don't seem straight in the "before" picture to me and the lighting look like it has been rigged to make her look worse in the "after" picture.

    but i still agree with the verdict. she isn't satisfied with the service and is letting the world know. there's nothing defamatory about that.
  • Silly, silly girl (Score:4, Insightful)

    by BigBadRich ( 849128 ) on Thursday February 08, 2007 @01:28AM (#17930962) Homepage
    It's amazing what people with low self-esteem will do to themselves. In this case she starts out (in my opinion) quite a gorgeous woman, and finishes looking like a cross between Cher and Marilyn manson (photos) [mysurgerynightmare.com].

    You'd think Michael Jackson would be enough of a deterrent for most people, but I guess you can never underestimate the power of low self-esteem.

  • Re:WTF (Score:1, Insightful)

    by pissedoffamerican ( 1002647 ) on Thursday February 08, 2007 @01:29AM (#17930982)
    Don't get scared, get angry.
  • by fredrated ( 639554 ) on Thursday February 08, 2007 @01:30AM (#17930988) Journal
    "What do you expect when you make such a serious decision on such short notice while admittedly depressed?"

    Are you saying that under these circumstances one should expect a shitty job? What, does your depression somehow affect the surgeon?
  • by sumdumass ( 711423 ) on Thursday February 08, 2007 @01:32AM (#17931000) Journal
    Umm, they took her right away and she won it back on appeal.

    It is in the article, something about her protest being defimation of charector and being told to take it down. And because the surgeon was considered a public figure, he had to prove both that her speach was wrong and that she intended malice in her statments. Before the appeal, I guess he wasn't considered a public figure and neither had to be proven.
  • by magicchex ( 898936 ) <mdanielewicz@gma ... m minus math_god> on Thursday February 08, 2007 @01:35AM (#17931024)
    What I mean is that when you're depressed and willing to go under the knife three weeks after you first considered the option, you're obviously not doing the sort of research and thinking that should go into this kind of decision. Of course the doctor is still at fault for botching the surgery but she probably could have avoided the entire ordeal if she went about it a little smarter.
  • Re:WTF (Score:3, Insightful)

    by WiiVault ( 1039946 ) on Thursday February 08, 2007 @01:40AM (#17931060)
    Yeah I got the jist of it too and I think you are right on. The problem for me is that her site, which I read all of, is very respectfull and straight foreward. This guy has had TONS of lawsuits against him for malpractice and yet she doesn't ever personally attack him or suggest that he is an all around bag guy or doctor. Obviously there is the suggestion but she avoids the explicit. I hate it when people abuse the legal system especially to cover their own ass. Its even more offensive when they have literally destroyed someones life and taken all their money. I would never get a surgery like this myself but clearly patents should be able to share whatever information they want as long as it is not threatening or straight out false. I'm sure you agree but I wanted to clarify my point.
  • by WiiVault ( 1039946 ) on Thursday February 08, 2007 @01:50AM (#17931112)
    On her site she answers your question with the most resonable and honost response I can imagine. She was feeling old being 30+ and unmarried and she had just split with a long-term boyfriend. She had know the doctor for 4 years and he had a respected title. I agree it was stupid but in our culture a woman's youthfull appearence is highly prized. Its really sad that she made this choice, but she should not be blamed for the horrible result. I just applaud her courage to show those pictures and take the embrassment in the hope of educating others.
  • by Excelcia ( 906188 ) <kfitzner@excelcia.ca> on Thursday February 08, 2007 @02:25AM (#17931322) Homepage Journal
    I've visited the web site in question [mysurgerynightmare.com], and I believe the surgeon has a point. It looks like the woman is using some of the same techniques shady businesses use to make before/after photos look different, but in reverse. These are:

    - One photo being done in a natural setting, one artificial.
    - One photo with a happy expression, one without
    - One photo with good lighting, one with very stark.
    - One photo with makeup, one without

    Some of this is related, but look. She insists one eyebrow is higher than the other and she is left with a permanent "surpised" look. This is quite possible, the eyebrow position can give that look, but raising the eyebrows would not have a significant effect on how wide her eye lids are open. Notice in the second photo she exadgerates her "surpised" look by opening her eyes as wide as possible. Add to that the camera in the before photo is slightly above her, and the angle difference adds to the effect. She is smiling in the first photo, which tends to close the eyelids a little and adjusts the eyebrow position.

    The makeup makes quite a difference to shading, and the after photo is in much more stark contrast, which elimates facial details.

    Also remember that the woman has filed a malpractice suit and stands to gain financially from seeming to look badly now.

    However the court ruled, I think the surgeon had a point.
  • by Korin43 ( 881732 ) on Thursday February 08, 2007 @02:33AM (#17931380) Homepage
    Not to mention that her eyes are opened wider in the second one to make her look surprised..
  • by timeOday ( 582209 ) on Thursday February 08, 2007 @02:40AM (#17931410)

    People should realise the risks of any surgery before they make minor cosmetic changes to their appeaarance.
    Well it's going to be pretty hard to learn about the risks if everybody with a complaint gets muzzled, now isn't it? This lawsuit has the direct effect of protecting peoples' right to learn about the risks.

    But I guess we can't have that, now can we? It might be bad for business.

    To be honest I don't even see how this case went to trial. How can we claim to have freedom of speech if you can't even complain about somebody doing a poor job? If she had knowingly made a factually false claim, then I could see it.

  • Well, as a general rule, I'd expect that the "director of facial plastic and reconstructive surgery at UC Davis Medical Center." is, at worst, not likely to be a fly-by-night quack.

    No matter how good he is, however, a bad result is always a possibility (even if remote). That this woman ended up on the short end of the stick still doesn't affect the validity of her tail -- if only as a warning of what really can go wrong if you're unlucky. I know one woman who is intensely ashamed of her breasts as a result of the side effects of augmentation surgery. She will no longer wear revealing clothing, because it's too likely to expose the scarring.

    That's not the kind of information that you're likely to get in the advertising brochures, or the 'reality television' shows that ("incidently") highlight a different plastic surgeon every week.

  • by balloonhead ( 589759 ) <doncuan&yahoo,com> on Thursday February 08, 2007 @03:35AM (#17931628)
    surgeons say that if you haven't had enough complications, you haven't done enough surgery. They are a statistical thing. The guy clearly is well qualified, and perfectly capable of doing the surgery, technically.

    The difficulty here is whether or not she can complain about it - and I would say that she can, but not the way she has done.

    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).

    Maybe if she could prove he was drunk during the operation or something that would also qualify.

    As it is, I think it is fair for her to put up before and after pictures, say who did the surgery, say that she is unhappy, and really do all sorts of free speech things that don't amount to libel.

    What if he has the best results of any surgeon, ever, and this is the first 'poor' outcome? That hardly makes it a botch - just her more unlucky.

    About 2% of medical negligence cases are found against the doctor. There are often a lot of emotional issues - and she has admitted to these.

    I will assume that she also signed an informed consent document which listed all the possible adverse outcomes - such as disfigurement, scarring, infection, death, spontaneous combustion. Maybe she should have weighed up those small but significant risks beforehand a bit more.
  • by Mistlefoot ( 636417 ) on Thursday February 08, 2007 @04:26AM (#17931874)
    The last 1000 patients have nothing to do with her case.

    That is like arguing that the car accident that I just caused was not my fault, as statistically speaking I drove the previous few 100,000 miles without an accident and was, statistically due.

    There is an inherent risk every time I drive that something may go wrong but I am still responsible for any accident that happens IF I messed up.

    I have no idea whether or not he messed up but clearly stats have little to do with that.
  • by bxbaser ( 252102 ) on Thursday February 08, 2007 @04:27AM (#17931882)
    From the article
    "Procedures: Endoscopic browlift, upper & lower blepharoplasty, cheeklift and fat injections"

    My first thought is if I lift my brows I look suprised.
  • by Lloyd_Bryant ( 73136 ) on Thursday February 08, 2007 @05:04AM (#17932040)

    What I mean is that when you're depressed and willing to go under the knife three weeks after you first considered the option, you're obviously not doing the sort of research and thinking that should go into this kind of decision.
    That is correct, and quite obvious. However, it is irrelevant to the quality of the surgery. Bringing it up smacks of blaming the victim. If that was not your intention, then you should not have brought it up.
    More to the point - did the doctor take advantage of her depression to line his pocket with a few more bucks? A reputable plastic surgeon should, IMO, try to counsel people against having plastic surgery if he/she notices signs of depression. All too often, however, these alleged professionals are simply trying to maximize their cash flow, without regard to what's best for the patient.

    There are a few cases where the victim shares part of the blame. For instance, if the doctor warns the patient that because of certain factors the risk of complications is much higher for her than for most other patients, but the patient absolutely insists on the surgery. But even in such cases, the doctor still has some responsibility.

    In this case, since she won a malpractice suit against the doctor, it's most likely that she is NOT to blame. Though there's no guarantee on that - she may simply have had a very good lawyer, who successfully played the "pity" card to win with an otherwise marginal case.
  • by Jah-Wren Ryel ( 80510 ) on Thursday February 08, 2007 @05:25AM (#17932092)
    While you have a point, it is mitigated by the circumstances surrounding the photos.

    The entire point of make-up being to hide imperfections, it is unlikely that she would have a "before" photo without make-up, especially if she had low self-esteem about her looks. If she had such a clinical "before" photo of her own, there would be plenty of people arguing that it was proof of premeditation to sue the doctor.

    If she were to wear make-up in the "after" photo it would also mitigate the effects of the surgically created imperfections which would not help her point at all, she wants to demonstrate the problem, not cover it up. Also, one of the reasons women get such work done in the first place is to reduce their perceived need to wear make-up, so if the surgery had gone well, she would not be wearing as much make-up as she had been before the surgery.

    Similarly it is unlikely that she would have a "before" photo that wasn't happy, people don't like to take pictures of unhappy times in their lives. You can't expect her to pose for an "after" photo and look happy - she's taking the photo specifically because she is unhappy, it would be ridiculous to expect her to be all smiles about it. Because she feels extremely unhappy with her new looks taking a picture, even in an attempt to get restitution or correction, is going to be an unpleasant experience for her.

    Camera and angle and lighting are much more likely to be the result of the amateur nature of both photos than any sort of explicit plan to manipulate the viewer.

    So, while I agree that her presentation is not necessarily evenhanded, I really doubt that it was calculated. At the very worst, she probably picked one of her better looking "before" pics and one of her worst "after" pics, but that's no different from a plastic surgeon who does the reverse in his marketing materials.
  • by Anonymous Coward on Thursday February 08, 2007 @06:33AM (#17932338)
    Your Boy Scout leader needs to work on his philosophy.

    When there is an accident, it could be that some person is totally at fault, but it could also be that no one is at fault... most situations are somewhere in between.

    For an extreme example: if a meteorite punches through the roof of a bus, killing the driver instantly, and thereby causing the bus to plunge over an embankment a few seconds later, then who is at fault?
  • by Anonymous Coward on Thursday February 08, 2007 @06:57AM (#17932406)

    she should not be blamed for the horrible result.

    I highly doubt she's never heard cosmetic surgery horror stories. She had to have known there was a risk. No doubt she signed papers acknowledging the risk without reading the fine print.

    In essence, you are saying that a grown adult shouldn't be held accountable for knowingly taking a risk when the risk doesn't pay off. That is the real problem with today's American culture, not the high value of youthful-looking women.

  • by balloonhead ( 589759 ) <doncuan&yahoo,com> on Thursday February 08, 2007 @07:01AM (#17932420)
    The last 1000 patients tell you if his outcomes are as expected, better than expected, or worse than expected.

    As I already said, complications are a statistical fact regardless of whether the surgeon makes mistakes or not.

    If he did the surgery expertly, and the poor outcome was for reasons other than what was in his control - then that's simply not his fault.

    This has no comparison to driving. This is accepted medical fact, studied at length by a great number of researchers, with consistent findings of rates of infection in a number of circumstances.

    If she had died unexpectedly as a result of the anaesthetic - statistically a 1 in 250 000 chance - then that's out of his control.

    If she had a post-operative infection - for this surgery about a 2-5% rate could be expected (I would expect her to be closer to the 2%) - then as long as he has followed accepted practice (aseptic technique, good wound closure, not too heavy on the diathermy, good haemostasis, a few others) - then again, this is a statistical fact.

    If we find that he has a 20% infection rate compared to his peers, who have a similar case load and all have a 2% infection rate - then we can raise issues of incompetence.

    This is long established. Ultimately, I also have no idea whether he was at fault or not - all I am saying is that sometimes, despite the best will and ability in the world, the outcomes are not ideal, and this is what needs to be established before accusing him of anything.
  • by Eivind ( 15695 ) <eivindorama@gmail.com> on Thursday February 08, 2007 @10:09AM (#17933454) Homepage
    True. But did you look at the page ?

    Sure she blames the Doc (and as you say: he may or may not be to blame, allthough he *did* have 13 malpractice-suits against him, lost 9 of those)

    But the overwhelming impression from reading the pages is "Be careful with plastic surgery.", it's not a risk-free as their marketing will have you believe, and it *doesn't* magically improve your life.

    This is unquestionably good advice. Furthermore, even if it was infact bad advice (which it isn't!) free speech means you're free to give even bad advice. Now, if she said something libellous and untrue about the doc, he would've had a point. But I don't see anything.

    She *does* say he performed the procedure. She does say he had several malpractice-suits. She *does* say she considers the results poor. But all of these things are true (and the doc hasn't claimed otherwise in court).

    If anything, she is still overly positive to plastic surgery imho -- she seems to think risks come primarily from selecting the wrong doctors. But as you correctly point out: surgery is *ALWAYS* risky -- even if you've got the best team on the planet doing the job. It's *NOT* something you should do without a very good reason. (And: I'm feeling kinda depressed this week, I'm only prettier than 90% of other women, with surgery I could be in the top 5% isn't a good reason. Not even close.)

  • by FrostedChaos ( 231468 ) on Thursday February 08, 2007 @06:27PM (#17940346) Homepage
    This is insightful? More like stupid.

    There are lots of reasons why a car accident might not be the fault of the driver. Perhaps the driver's car was assembled improperly in the factory. Maybe someone else on the road was driving like an idiot. Maybe there was a medical emergency that nobody could have predicted.

    If you have a stroke, and lose control of your body, and crash your car into a bus full of schoolchildren, you are not guilty of manslaughter. Assuming that there is no pre-existing medical condition that you were aware of, it is considered "an act of god" in legal terminology.

    You cannot be held responsible for any action unless you knowingly consent to performing that action. Without intent, there can be no guilt. You aren't responsible just because "you happened to be there and something went wrong." Anything else makes a mockery out of morality.

Air is water with holes in it.