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."
Comment removed (Score:5, Funny)
Re:According to courtroom reporters... (Score:4, Insightful)
Re:According to courtroom reporters... (Score:5, Insightful)
Are you saying that under these circumstances one should expect a shitty job? What, does your depression somehow affect the surgeon?
Re:According to courtroom reporters... (Score:4, Insightful)
Re:According to courtroom reporters... (Score:5, Insightful)
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.
Re:According to courtroom reporters... (Score:5, Insightful)
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.
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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.
Re:According to courtroom reporters... (Score:5, Insightful)
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.
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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'
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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
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Re:According to courtroom reporters... (Score:4, Informative)
We heard about this back in 2006 [slashdot.org]
. It was pretty amazing that she got it overturned.
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I agree about the clumsiness/mistakes part - I am just saying that has to be established. All I am saying is that if his outcomes are generally average, or better than average, and no evidence of actual bad practice can be found (very difficult when she was under anaesthetic during the procedure, and had no non-partisan witnesses), and she underwent the procedure with informed consent, and her poor outcome was part of the complications listed in that
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Reference: botch [reference.com]
Re:According to courtroom reporters... (Score:4, Funny)
That's EASY. You clearly don't have much imagination.
1. NASA, for failing to predict and warn of the meteorite impact.
2. Congress, for failing to fund meteorite monitoring and prediction services.
3. The public, for failing to elect a Congress that would fund meteorite prediction services.
4. The manufacturer of the bus, for failing to include a roof that could withstand a meteorite impact.
5. Materials scientists, for failing to invent a cheap bus-roof material strong enough to withstand meteorite impacts.
The list goes on and on...
Re:According to courtroom reporters... (Score:5, Funny)
He added a tail too? No wonder she is pissed.
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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.
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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 beca
Re:According to courtroom reporters... (Score:4, Funny)
Link to the website (Score:5, Informative)
Re:Link to the website (Score:5, Interesting)
Also, TFA is reg-required (Do I really want to spend x minutes signing up & agreeing to God know what on a paper I'll never read again?). So, for your reading pleasure the story from metnews [metnews.com].
Lastly, shouldn't that headline read: Woman's Right to Criticize Surgeon on Website upheld
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Yup... I can verify that.
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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.
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Re:Link to the website (Score:4, Interesting)
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Username: bugmenot Password: bugmenot
Re:Link to the website (Score:4, Interesting)
The Sacramento Bee has the headline, "Woman wins right to attack her plastic surgeon on the Web".
Attack? What the hell?
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We used to have the Union as well, which carried almost a polar opposite political cast, but hey...
-nB
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Re:Link to the website (Score:5, Insightful)
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.
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She has every right to tell people about her story, but that doesn't mean she has the right to give false accounts that unfairly harms someone's reputation.
I guess all the court has to decide is whether the 'botched' statements,
the 'after' image has been scaled (Score:2)
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Sad thing about that website is that she looked pretty good in the 'before' photo. People should realize the risks of any surgery before they make minor cosmetic changes to their appearance.
Executive summary: Plastic surgery decisions are rarely rationality-based
For more rubbernecking (Score:2)
WTF (Score:4, Insightful)
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Slander and libel are very odd. I forget, but somehow there is a burden on the defendant to prove that the offending statement was true, rather than for the plaintiff to prove
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free registration (Score:3, Informative)
Re:WTF (Score:5, Informative)
Re:WTF (Score:4, Informative)
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 [wikipedia.org] is helpful in explaining this distinction, but only a real lawyer -- and IANAL -- is qualified to interpret it for you.
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The only thing that was clear to me is that the court decided he was a limited purpose public figure in this case, and that the website failed to meet the standard of "actual malice" in the posting of this information. As
For those who do not want to register (Score:5, Informative)
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Title Correction: (Score:5, Insightful)
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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.
Right to Criticize Surgeon on Website (Score:2, Funny)
WTF was she thinking? (Score:2)
Also, she probably should have done the malpractice research BEFORE the appointment.
Wow. Just wow.
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Sorry, couldn't resist.
Helping a little (Score:3)
Don't be fooled by it, It could be because of the same surgury that raised her eyebrows. But I wouldn't know.
I sure would like to read the story but the link goes to some registration page. I'm not about to give any information do if someone has another link, it would be apriciated.
BTW, isn't she the one who got arested or something a while back for her page?
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Why surgery in the first place? (Score:4, Insightful)
That said, it's great that we have plastic surgery for patients with actual disfigurements.
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Reconstructive Surgery NOT Benefitted. (Score:5, Interesting)
My experience is that reconstructive surgery is deteriorating. Plastic surgeons are now learning to do cosmetic procedures, rather than reconstructive. I have a genetic defect with my eyelids, and had three surgeries as a child. Now decades later, I could use additionaladvanced reconstructive surgery to give my eyes a more reasonable appearance.
Eyes are very important to our facial expressions, and although my friends think I look lovely, strangers sometimes do an unpleasant double-take when they see me.
So I wanted to give it another shot, figuring reconstruction has improved since I was a poor child receiving free care.
The Stanford geneticist recommended a Stanford specialist and I went to see him. The waiting room was filled with literature about "eye lifts" for regular, aging people. I consult with the doctor (and I secretly recorded the conversation) and he did his utmost best to talk me out of any surgery at all. I could tell he was floundering.
I provided him records of what had been done, and suggested w2hat could be done, and made clear that I was not expecting miracles, just a slight improvement would be worth it.
He called in his senior, and they spent the next four minutes trying to pass the buck and make the other person do the surgery. The way we left it, was they were going to "contact my insurance" and I never heard back, despite sevferal phone calls.
These were Stanford Medical Center professionals, recommended by the geneticist who deals with birth defects, and THEY only wanted to do normal eyelid lifts. I was so disheartened, I never tried again.
GRR.
IMO way too fscking much money is spent on frivolous surgery.
My story, and I'm too tired to be concise so I'll just... submit it.
Silly, silly girl (Score:4, Insightful)
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.
Tags (Score:2)
Patient's privacy? (Score:5, Interesting)
I firmly believe that a patient should have the right to critisize their doctor, but I also believe the doctors should have the ablitly to defend themselves. I'd have liked to have seen part of a ruling that said they were no longer required to keep confidentiality for that particular patient.
If the doctor is not in a position to put up a web site, with pictures and inimate details of a patient who's gone public, then that person should be refrained from going public. Since that's pretty hard to enforce retroactively the only recourse seems to view the patient's public proclamations as relinquishing all privacy rights with respect to the doctor or hospital involved.
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Protection of Free Speech is available to citizens as a whole. However confidentiality agreements between two parties that prevent disclosure of certain (Not all) facts overrules the free speech right, because the former is a right granted under the constitution, while the latter is a valid contract.
It is the same reason why you are asked to sign confidential non-d
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A patient can give a doctor permission to release their medical information. In some cases public disclosure and discussion should be considered a release. Just saying "I have cancer" would not be enough, but there there should be a point where the situation is no longer considered private due to the patient's own disclosure.
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I think the same thing applies here (the fiduciary duty); reference, Breen v Williams. Actually, the opposite of what I'm saying is true there, but it references other jurisdictions where the fiduciary duty is active and why.
An interesting read, and relevant, in any case.
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In response to her public campaign, his recourse was to sue the patient, and a ruling was made. While you or I might not agree with the ruling, I think your suggestion is dangerous.
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I think this is a really tricky gray area, but I think you have a point. I think I prefer a different solution. Require that the person doing the criticizing point out that the doctor is unable to effectively rebut due to privacy laws, or publicly state what sort of information it would be OK for the doctor to disclose in defending h(er/im)self.
This lets people know that they may not be getting the whole story, or allows the patient to trade privacy for the perceived integrity of the story on h(er/is) ow
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If the doctor is not in a position to put up a web site, with pictures and inimate details of a patient who's gone public, then that person should be refrained from going public. Since that's pretty hard to enforce ret
ka-ching$ (Score:3, Funny)
The surgeon may have a point... (Score:5, Insightful)
- 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.
Re:The surgeon may have a point... (Score:5, Interesting)
The pic looks fake.
Mod parent up - de-photoshopped pics (Score:2)
Re:The surgeon may have a point... (Score:5, Insightful)
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.
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all the comments were right about them: inconsistent lighting, face angles, expression - you name it!
worst A/B shot I've seen. clearly not meant to be a real clinical before/after. or, they just CAN'T be THAT bad at taking simple 'stand here and smile' photos!!
manual focus and manual exposure. controlled studio lights. same location same camera angle. is this rocket science? no, of course not.
anytime I see a very poor A/B shot, I kno
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It's not about winning the lawsuit, necessarily (Score:2, Interesting)
As a personal example, photos of mine were published in the local phone book (in a corporate advertisement) without my permission. When the corporation refused to compensate me, I wrote about it on my website. They then sued me for defamation.
Do I have the certificate of cop
Not surprised on how the surgery turned out. (Score:2)
Also why does it look like she has an Adam's Apple [mysurgerynightmare.com]?
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Also why does it look like she has an Adam's Apple?
Everybody has an Adam's Apple [wikipedia.org]. It's the thyroid cartilage [wikipedia.org]. To be fair it is usually more prominent in men than women.
Really? (Score:5, Funny)
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Damn it, Jim, I'm a doctor not a miracle worker!
Other side effect (Score:5, Funny)
Deformation (Score:3, Funny)
Did anyone else read this as "deformation suit"??
Strange a browlift make her looks suprised. (Score:2, Insightful)
"Procedures: Endoscopic browlift, upper & lower blepharoplasty, cheeklift and fat injections"
My first thought is if I lift my brows I look suprised.
Michael Jackson (Score:2)
That is so funny, the article has been deleted (Score:2)
I can't help but laugh... (Score:2)
Who's your Daddy (Score:3, Funny)
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Seriously, this is a little more. She got the surgery, saw the results, made website about it and sued. He saw the website, claimed it was slander and liable, took it to court, she countered, it was dropped on some anti slapp stuf that attempts to limit the endless cycle or lawsuite to counter someone elses. The court said no, ordered her to drop the suite. she ended up losing the ability to keep the site up. and was order to pay or somethign
Oh yea, some how the court who did this was from ano
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I bet that's one doctor that wishes he had never entered the courtroom.
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You presuppose that the operation was botched. She may make false or misleading statements on the web site, which would make it unjust.
I don't think this is really about free speech at all. The winning side just want to get publicity.
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