Plastic Surgeon Sues Clients Over Negative Reviews on Yelp, Citysearch

Nov. 29, 2010— -- If you don't like your doctor's handiwork, plenty of websites invite you to share your criticism online. But go too far and you could find yourself hit with a $100,000 lawsuit.

That's what happened to three woman who allegedly used Yelp and Citysearch to review the plastic surgeon who they say botched their breast surgeries.

In response, Dr. Jay Pensler, a Chicago-based cosmetic surgeon, is suing each of them for $100,000 in compensatory and punitive damages.

Pensler filed three separate complaints with the Circuit Court of Cook County, Ill., claiming that the three women -- Elaina Bender, Lisa Cuevas, and another woman -- attempted to "ruin the professional reputation of a well respected plastic surgeon, through false and defamatory statements."

In separate comments that have since been removed from the online review sites, the women called Dr. Pensler "dangerous," "ruthless," a "liar" and "horrible," according to Pensler's complaints.

Mitchell Marinello, Pensler's attorney, said they were able to identify the women behind the comments by subpoenaing Yelp and Citysearch to uncover the identifying information.

When reached by ABCNews.com, Cuevas said she posted the comments because "I didn't want to see another human being -- male or female -- go through what I went through. …I meant it innocently."

In the complaint filed against Bender, Pensler includes a screen grab of a comment posted to Yelp in which a reviewer named "john n." says that both his girlfriend and sister went to Dr. Pensler on the same day.

The review says "They both will have to have surgery AGAIN to FIX HIS HORRIBLE, disfiguring work. I feel very bad for both of them, really." Later, the review says that Dr. Pensler is a "rude jack***" and "his wife 'nurse' is a very rude unprofessional b****."

Marinello said that when they tracked down the person behind the "john n." review, they learned that "he" was actually a "she" -- Bender.

In a deposition taken in October, Bender acknowledges that she disguised herself as a man in the review but said, "I was referring to myself and all the other people. So you can spin it that way, but I count, too, as a consumer writing this. I count in this review. "

Carol Oshana, Bender's attorney, said Bender protected her true identity in the review because she was embarrassed, but wanted to warn others about her experience.

"She wanted to just notify the public that, God forbid, they have to go through the same thing that she went through," she said.

Oshana said that Bender's online comments (as well as the comments of the other women) do not constitute defamation, but are valid complaints about Dr. Pensler's practice.

"They have real criticism about his work and they all should be able to express their First Amendment rights," she said.

"She was humiliated by the results of her breasts," she said. "Her breasts are just horrific."

Plastic Surgeon Sues Patients for Alleged Online Comments

According to one of the complaints, one woman said she had "an awful experience with Dr. Pensler that I would not wish on my worst enemy."

Another review warns potential patients to "avoid him at all costs, please!! RUN, RUN, RUN!!!!"

"It's one thing for people to express their opinions in a responsible way and they're entitled to be critical if they choose to be critical," he said. "But people are not permitted to make up stories or make up false statements that attack people and are defamatory."

Marinello said the case against Bender, which was filed in June 2009, is currently in discovery, the other two cases were just filed in August.

Negative Comments Remain on Websites

Yelp and Citysearch both currently host comments posted by users named "elaina b." and "Elaina Joy B" criticizing Pensler.

"I do not recommend Dr. Pensler," says one review by elaina b. on Yelp. "I had surgery done by him and my breasts are ugly and uneven. I will need additional surgery to fix them. When I expressed concern to Dr. Pensler, he was nothing less than rude and arrogant. ...After my surgery, whenever I look in the mirror, I am horrified and I have cried several times over the way they look."

In another Yelp review, "melissa h." says "MY BREASTS LOOK LIKE SOMETHING OUT OF FREDDY CRUGER'S MOVIE!!!!!!!."

"S.W." from Chicago says her surgery left her with "Frankenstein breasts."

It is unknown if any of the three plaintiffs are behind those comments.

In a comment on Citysearch (which is still there), "Elaina Joy B" also says that Pensler has been sued multiple times, including for medical malpractice.

Marinello acknowledged that Lisa Cuevas, one of the women listed in Pensler's suits, has filed a malpractice suit, but he said that any claims of multiple suits are false.

"To the best of my knowledge, Dr. Pensler has had no other medical malpractice case filed against him in the past five years," Marinello said. "Dr. Pensler has never had a judgment entered against him for medical malpractice nor has he ever paid anything to settle a medical malpractice case."

Legal Expert: Anonymous Commenters Can Be Unmasked, Sued for Defamation

Danielle Citron, a professor at the University of Maryland School of Law, said that intermediary sites like Yelp and Citysearch are under no legal obligation to remove potentially defamatory or harmful comments.

Still, she added, they have Terms of Service that they tend to take seriously. Yelp, for example, tells users that they may not impersonate others and that the website reserves the right to remove posts that violate its Content Guidelines.

But while intermediaries can't be sued for defamation, anonymous posters can be unmasked and taken to task for spreading negative, false information on the Internet, she said.

Courts have upheld that "liar" can be considered defamatory, she said. And while it's disputed that calling someone is "dangerous" is fact or opinion, it could be argued that "dangerous" is also defamatory, Citron said.

"Potentially, the people writing are trying to protect other women but, at the same time, there are huge stakes for folks whose professions are about trust and professionalism and expertise," she said.

Given the nature of the Internet, if falsehoods are spread online, Citron said, "Reputation and lives are ruined and it's searchable and persistent on the Web."