Botched plastic surgeries are not uncommon, nor is it uncommon for one to become the basis for a medical malpractice lawsuit. But one patient took the uncommon step of not only suing her plastic surgeon, but creating a website detailing her experience, www.mysurgerynightmare.com.
Georgette Gilbert explains on her website that she was seeking minor surgical work when she consulted with Dr. Jonathan Sykes. Dr. Sykes is a UC Davis plastic surgeon who frequently appears on TV news spots promoting plastic surgery and has been widely-published on the subject.
But Gilbert claims Dr. Sykes botched a brow lift which left her with what she describes as a permanently “surprised” look on her face. She presents before and after photos on her website to support her claims. She also asserts that she can no longer fully close her eyes and that her eyebrows are no longer at the same height. She disagreed with Dr. Sykes’ alleged assessment in a post-surgery visit that the results were “good and improving.”
Gilbert allegedly underwent four revision surgeries performed by other doctors to correct her problems. In early 2005, Gilbert launched a web site, detailing her experience with Dr. Sykes and UC Davis Medical Center, and of course, presenting the comparison photos. She also offers a list of “red flags” when choosing a surgeon and offers a page inviting reader feedback. On the home page, Gilbert disclosed that Sykes, director of facial plastic and reconstructive surgery at UC Davis Medical Center, performed her procedure, and posted a list of other medical malpractice lawsuits allegedly filed against him.
“I was under the impression the result would be very subtle,” she writes on the site. “I really trusted this surgeon and thought he would do only what was in my best interest.
Gilbert filed her medical malpractice lawsuit against Sykes in California. Sykes asked Gilbert to pull her web site, and after she refused, he and the UC Regents filed a cross-complaint against her alleging the web site publications were defamatory and caused Sykes emotional distress and loss of business. Gilbert sought to dismiss the cross-complaint arguing that she was simply exercising her right of free speech in a public forum and in connection with a matter of public interest.
The trial judge found that the surgeon had met his burden of showing Gilbert had defamed him. Further, the judge ruled that Sykes was not a limited purpose figure and thus did not have to show Gilbert uttered her statements with actual malice in order to defeat her motion to strike.
But the California Court of Appeals saw it differently, ruling that Sykes in fact was a limited purpose public figure:
“Sykes’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 called Sykes “an archetypal example” of a limited purpose public figure, saying Gilbert’s evidence showed Sykes thrust himself into the public debate about plastic surgery by writing articles for medical and other publications, appearing on local television shows, and otherwise “touting the virtues of cosmetic and reconstructive surgery.”
Therefore, the court wrote, Sykes was required to prove by clear and convincing evidence not only that the statements Gilbert made on her web site were false, but that they were published with actual malice.
Under that standard, the justices concluded Sykes did not prove a probability of prevailing on the merits of his defamation claim.