A Marin County cosmetic surgeon who filed a defamation suit against an online reviewer was ordered to pay nearly $20,000 in attorney's fees after a judge dismissed the case "with prejudice in its entirety."
Dr. Kimberly Henry of Greenbrae was also told to pay a $2,000 award to the defendant's lawyer for the "public interest benefit" of his work on the case.
The order was issued this week by Marin Superior Court Judge Roy Chernus, who tossed out Henry's lawsuit against her former patient, Deidra Carson.
"(Henry) was clearly trying to penalize Defendant's fundamental right of freedom of speech under the First Amendment of the Constitution of the United States," Chernus wrote.
Henry, commenting on the outcome of the case, said the country's free speech law means "you can say whatever you want, even if it's not true."
"You can't fight it," she said Thursday. "There's nothing to protect you."
Henry filed the lawsuit in May 2010 after Carson posted negative comments about Henry's care at Yelp.com, a website for consumer reviews. The lawsuit sought more than $2 million in damages on claims of libel and defamation, invasion of privacy and interference with prospective economic advantage.
Carson, a Kentfield resident, argued that the lawsuit was a so-called SLAPP suit -- litigation intended to squelch free speech, known as a "strategic lawsuit against public participation" -- and filed an anti-SLAPP
Henry later conceded that most of Carson's statements were either a matter of opinion, factually true, or could neither be admitted nor denied based on available information, according to court documents.
Henry also admitted that some of Carson's statements were a matter of public record with the state medical board, including a 2006 reprimand for administering Type A Botulinum Neurotoxin to herself and about 40 patients. The board said the botulinum toxin "was not approved by the Food and Drug Administration, was for research purposes only and was not intended for human use."
However, Henry denied Carson's claim that the doctor lasered her skin "too deeply" during a facial "resurfacing" in 2004.
"Defendant's statement that plaintiff lasered her brows and the sides of her hair implies that plaintiff did so intentionally, which plaintiff denies," Henry's lawyer, Eric Nordskog, wrote in a court filing. "The procedure necessarily requires using the laser within close proximity of the eyebrow and the skin immediately adjacent to the hairline."
Henry, who has been practicing since 1985, also has offices in Petaluma and Davis. She graduated from medical school at the University of California at Davis, and is a member of the American Medical Association, American Board of Plastic Surgery and the California Plastic Surgery Society, according to her website.
Carson was represented by Michael Blacksburg, an attorney based in San Francisco.