Monday, January 29, 2007
C.A. Says Surgery Advocate Limited Purpose Public Figure, Tosses Suit
By TINA BAY, Staff Writer
A well-published UC Davis plastic surgery professor and practitioner who sued a former patient for defamation over statements she posted on the Internet was a limited purpose public figure for purposes of her anti-SLAPP motion, the Third District Court of Appeal held Friday.
Reversing a ruling by Sacramento Superior Court Judge Thomas M. Cecil, the
court directed him to grant Georgette Gilbert’s special motion to strike plastic surgeon Jonathan Sykes’ multi-tort cross-complaint, filed in her malpractice action against him.
In her lawsuit, Gilbert alleged that Sykes botched a brow lift, accomplished through five separate surgical procedures to her face, which left the then-33-year-old with results far different from the “natural” outcome Sykes told her to expect.
After the lift in 2003, she claimed, she was unable to fully close her eyes, was left with eyebrows placed more highly than expected and one eyebrow higher than the other, and had a permanently “surprised” look on her face. She disagreed with his 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 February or March 2005, Gilbert launched a web site, http://www.mysurgerynightmare.com, where she recounted her brow lift experience and said she sought to “inform and educate” members of the public who were considering plastic surgery. 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 wrote on the site. “I really trusted this surgeon and thought he would do only what was in my best interest.
The site contained links to two sets of “before” and after “photos,” with the post-surgery snapshots captioned, “Approximately 5 months after surgery.” The photo page stated in prominent typeface that Sykes performed the surgery.
Also included in Gilbert’s web site was a list of “red flags” to generally watch out for in selecting a surgeon, and a page inviting reader comments.
Sykes asked Gilbert to shut down her web site, but 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. He claimed, among other things, that the “after” photos posted on the site had been taken “after additional and significant cosmetic surgery procedures” not performed by him.
Gilbert sought to dismiss the cross-complaint pursuant to Code of Civil Procedure Sec. 425.16 on the ground that it arose out of her exercise of right of free speech in a public forum and in connection with a matter of public interest.
Cecil granted the motion as to the Regents but denied it as to Sykes. Although the anti-SLAPP statute applied, the judge found, 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.
“The fact he has published articles and books on plastic surgery and appeared on television shows does not mean there is a public controversy relating to Ms. Gilbert’s plastic surgery,” Cecil explained, concluding the surgeon met his burden of showing Gilbert had defamed him.
Writing for the Court of Appeal, Justice M. Kathleen Butz said Sykes in fact was a limited purpose public figure. She explained:
“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 justice 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, Butz 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.
Justices Tani Cantil Sakauye and Ronald B. Robie concurred in the opinion.
The case is Gilbert v. Sykes, 07 S.O.S. 448.
Copyright 2007, Metropolitan News Company