The role of defamation proceedings in protecting and repairing the surgeon’s reputation
Defamation is an area of law, that aims to balance the right to freedom of expression and the right of individuals to protect their public image. Defamation proceedings empower individuals to enforce their rights, providing a means to compensate for unjustified attacks on their reputations.
When working in the medical field, reputation is everything. Fombrun and Van Riel, in 2007, asserted that reputation is the “most valuable asset.” In torts such as defamation, damages are commonly sought and awarded for relief. The purpose of damages is to place plaintiffs in the position they would have been in, had the wrong not occurred. However, tension inevitably arises in situations involving monetary compensation. Such tension involves questions as to whether one can truly equate the present and future harm to a monetary sum, and ultimately whether defamation proceedings can fulfill their role of protecting and repairing one’s reputation.
In 2010, our Barrie Goldsmith represented Dr. Rastogi in defamation proceedings. The case raises important issues regarding the capacity for defamation proceedings to repair and protect the reputation of victims whose reputation was unjustifiably attacked.
The plaintiff, Mr. Rastogi, is a cosmetic surgeon who provides purely cosmetic, physical appearance enhancements. The defendant, Mr. Nolan, underwent two cosmetic surgeries, both provided by the plaintiff. The first surgery was liposuction and the second surgery was breast augmentation. Dissatisfied with the outcome of the breast augmentation, the defendant called and sent a letter to the plaintiff, demanding the removal of the implants. Later the same year, the defendant complained to the Director of Nursing at the hospital where she received the surgeries, the Ethics Committee of the Australasian College of Cosmetic Surgery, the Registrar of the NSW Medical Board, and the HCCC.
On 17 October 2006, the defendant disrupted the plaintiff’s book launch, by flourishing two breast implants whilst screaming. This incident ultimately prompted the plaintiff to seek an Apprehended Violence Order against the defendant. Following Court, the defendant agreed not to approach or defame the plaintiff.
The Defamatory Publications
This case concerned 3 defamatory publications posted on a website, “thenolanreport.blogspot”. The publications posted by the defendant included headings such as “Dr. Anoop Rastogi Surgery Disappointment Statistics” where she claimed that Dr. Rastogi presents his material in a “squeamish, obfuscating, self-serving way”.
In the first publication, the plaintiff pleaded 3 imputations; that the plaintiff refused to provide a patient satisfaction survey that was requested by the defendant, the plaintiff was deceitful, and lastly, that the plaintiff was reckless.
As for the second publication, the plaintiff pleaded 5 imputations. Namely, the plaintiff lacked professional integrity, engaged in the false and misleading promotion, is unsafe and untrustworthy, abused minor females, and wreaked havoc in the lives of females.
The plaintiff pleaded to 10 defamatory imputations relating to the final defamatory publications. Specifically, the plaintiff refused to provide patient satisfaction surveys, is not qualified as a cosmetic surgery expert, is deceitful, is unqualified in his job, is not a bona fide practitioner, is not a “verifiably accredited practitioner”, is not sufficiently experienced for the work that he performs, undertook in false and misleading promotional strategies, and abuses consumers.
Whilst the first proposed imputation of the first publication was not successfully pleaded, the second and third imputations were found to be defamatory and conveyed. As for the second publication, all imputations were successfully pleaded. Equally, all ten pleaded imputations contained in the third publication were successful.
The plaintiff was awarded $20,00 by way of compensatory and aggravated damages in respect of the serious imputation conveyed by the first publication. A further $20,000 was awarded in respect of the second publication and an additional $25,000 was awarded for the imputations communicated by the third publication.
The Court granted the plaintiff’s application for a permanent injunction against the defendant. The terms of the injunction restrained the defendant from making any defamatory publications, imputing that Dr. Rastogi is reckless, negligent, or dishonest.
Does this truly rectify the damage to Dr. Rastogi’s reputation?
The Court considered the amount of time that the publications were available online in conjunction with the severity of the imputations as a way of gauging the likely damage to Dr. Rastogi’s reputation. However, there was no way to determine how many people had seen each of the publications, limiting the capacity for the Court to assess the true extent of perpetual dissemination, or as referred to in defamation, the grapevine effect.
The grapevine effect recognises that the publication of a defamatory matter is rarely limited to those to which the publication was directly made available. Picture this: a potential future client of Dr. Rastogi, let’s call her Sally, tells her friend that she is planning to have a breast augmentation performed by Dr. Rastogi. Sally’s friend realises that she has heard of that name before and recalls seeing negative information about Dr. Rastogi online. Just to be safe, Sally decides to find an alternative surgeon to perform the breast augmentation. In the event that this occurs, Dr. Rastogi is losing clients, hence losing income, without being aware of it. This has harmed Dr. Rastogi’s both medical and personal reputation. What is worse is that there is no way to predict when or if this dissemination of negative information will end, and the full extent of the harm caused to Dr. Rastogi’s reputation and business more broadly.
According to Salary Expert online, the average cosmetic surgeon has an annual base salary of $422,106. However, Dr. Rastogi was only awarded $67,500 total (including $2,500 in interest), which only amounts to 16% of the average cosmetic surgeon’s base salary. This begs the question; has Dr. Rastogi been placed in a position equal to if the defamation had not occurred?
Although you might think that the damages awarded to Dr. Rastogi were not adequate to restore his reputation to the way it was, had the defamation not occurred, it is imperative to consider that the damages are provided according to the extent of harm caused. As the Court was not able to ascertain the period in which the publication was posted, it is difficult to measure how much harm was caused to Dr. Rastogi’s reputation and business.
Dr. Rastogi successfully permanently restrained Deidre Nolan from indirectly and directly publishing any statement that concerned Dr. Rastogi’s recklessness, dishonesty, or negligence as a cosmetic surgeon, and inability to correctly perform surgery. Mr. Nolan was also ordered to pay for Dr. Rastogi’s costs of litigation, which effectively prevented Dr. Rastogi from suffering more financial losses.
Further impacts on business and reputation to be considered
Although the Court’s decision favoured Dr. Rastogi, it does not mean that the law is not complex and that it is common to win defamation proceedings. Not only are they often difficult to prove but they may also attract media attention that can lead to republishing of defamatory comments. This can further potentially damage the surgeon’s reputation and exacerbate the impacts associated with legal proceedings.
Another impact is that surgeons may cease the relationship with a patient f they believe that is in the patient’s best interest or if the therapeutic relationship is no longer untenable. Given that this is the case, it is important to understand when it is appropriate to end treatment and how to proceed without breaching one’s professional and legal obligations. Effective communication with patients is advised.
If you are worried that someone is making potentially defamatory statements about you, we suggest that you obtain prompt advice as bringing a defamation case involves time limits and hence, prompt actions.
Have you been the subject of negative public publications and want to learn more about your rights? Contact our defamation team today at [email protected] to discuss your matter further.
The blog published by Rostron Carlyle Rojas is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog published. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult RCR on any legal queries concerning a specific situation.