Greenbrae plastic surgeon sues online critics

Source: Marinij.com
Date: July 5, 2010
By: Gary Klien
Link: Online Story

Greenbrae plastic surgeon sues online critics

A cosmetic surgeon in Greenbrae has filed a lawsuit to stop critics from badmouthing her on the Internet.
Dr. Kimberly Henry is seeking injunctions against at least 12 online reviewers, only a few of whom have been identified. The critics, writing under aliases at rating sites such as www.Yelp.com and www.DoctorScorecard.com, have posted scathing accounts of treatments they claim to have received from Henry.

Henry’s lawsuit, filed in Marin Superior Court, claims libel and defamation, invasion of privacy and interference with prospective economic advantage. She is seeking $1 million in general damages, $1 million in special damages, unspecified punitive damages, legal costs, injunctions against the reviewers and restraining orders.

The critical commentaries have been read by “hundreds, perhaps thousands, of consumers and prospective patients,” wrote Henry’s lawyer, Eric Nordskog.

“It clearly exposes the plaintiff to hatred, contempt, and obloquy,” he wrote, adding that Henry has suffered “loss of her reputation, shame, mortification, and hurt feelings all to her general damage.”

It remains to be seen how many defendants will face litigation and whether Henry will file separate lawsuits against each. An initial lawsuit filed last year named an unspecified number of unknown defendants to be identified later. Since then, Nordskog has amended the lawsuit to list 12 specific aliases and three named defendants. Two related lawsuits have been filed against one of the defendants.

Nordskog’s filing said he has identified some commenters by issuing a subpoena for the records of www.DoctorScorecard.com, an Arkansas-based website where many of the reviews were posted. Nordskog said the website cooperated.

Earl Thurston, the proprietor of DoctorScorecard, confirmed that he provided Nordskog e-mail and IP addresses of Henry critics in January, but has not done so since. Nordskog’s subpoena was the first he had ever received.

“I was inexperienced with the law and the way the court system works,” Thurston said. “I assumed that if a judge ordered that I provide the information, that I was required to do so by law.”

Since then, another lawyer sent him a subpoena for user information for a similar lawsuit in Texas. Thurston said he is fighting the subpoena with the help of Public Citizen, a nonprofit consumer advocacy organization in Washington D.C.

“I spent many hours reading online about the legal process and came to the conclusion that I could fight to keep our users anonymous, even if a judge orders us to reveal their identities,” Thurston said.

Stephanie Ichinose, a spokeswoman for www.Yelp.com, a site that posts user reviews on numerous subjects, noted that a similar case played out last year in San Francisco. In that case, dentist Gelareh Rahbar filed a defamation suit against Jennifer Batoon, a patient who wrote a negative review about the dentist on Yelp.com.

“The judge threw out the defamation counts and ordered Rahbar to pay $43,000 for Batoon’s legal fees,” Ichinose said.

The claim was dismissed because of California’s law against so-called SLAPPs – strategic lawsuits against public participation – which are lawsuits aimed to squelch free speech. Batoon was represented by the California Anti-SLAPP Project, a public interest law firm in Berkeley.

John Diamond, a professor at University of California, Hastings College of the Law, in San Francisco, said forum providers such as Yelp.com are immune from defamation suits, and that anti-SLAPP laws provide some protection for online commentators.

But Diamond, who has no knowledge of Henry’s case, said reviewers can be held liable if they assert “false facts, not just opinions.”

“They actually have to commit defamations, and that is something that is false and damaging to reputation,” said Diamond, a Tiburon resident. “I think what’s happened is many more people have a forum now to make comments and have a impact. Previously there haven’t been that many opportunities.”

Numerous positive reviews can be found on the Internet about Henry, who has been practicing since 1985. Henry, who graduated from medical school at the University of California, Davis, is a member of the American Medical Association, American Board of Plastic Surgery and the California Plastic Surgery Society, her website says.

According to the state medical board, she has no record of malpractice settlements or awards against her, nor any governmental or hospital disciplinary actions. But the board did reprimand her in 2006 after an investigation revealed she “purchased and administered to yourself and approximately 40 patients Type A Botulinum Neurotoxin, distributed by Toxin Research International.”

“You failed to inform the patients that the botulinum toxin you were using was not approved by the Food and Drug Administration, was for research purposes only and was not intended for human use,” said the letter of reprimand, signed by medical board executive director David Thornton. The action was a violation of state code, he said.

A case management conference in Henry’s defamation lawsuit is scheduled for Aug. 23 before Judge James Ritchie.

Henry did not respond to messages seeking comment about the lawsuit.