Defense Digest

In a complex case from a procedural standpoint, a patient who sustained serious injuries following eye surgery has been allowed to maintain a website he created expressing views regarding the dangers of lasik surgery and potentially disparaging comments about the defendant eye doctors and their professional practice. The recent decision by the Pennsylvania Superior Court in Nevyas v. Morgan, 2007 Pa. Super. Lexis 310 (Pa. Super. 2007) balances the legal theories of defamation, breach of contract, specific performance and injunctive relief with the right to freedom of speech under the First Amendment.

The background for the Nevyas decision arose from a very disgruntled patient, Dominick Morgan, who was left legally blind following lasik eye surgery performed at the offices of Herbert Nevyas, Anita Nevyas-Wallace and Nevyas Eye Associates, P.C. Morgan sued the Nevyases for professional negligence in April of 2000, and approximately two years later, he created a website under the domain name www.lasiksucks4you.com. On the website, Morgan expressed his views regarding his lasik experience and the skills of the Nevyases, including that they were "ruthless, uncaring and greedy" and that they "ruined" his life. Morgan also wrote that he was not fully informed of the risks for the procedure, and he included other defamatory comments.

In June of 2003, the malpractice action proceeded to a binding high/low arbitration, which resulted in a defense award. Therefore, the low figure was paid to Morgan by the Nevyases. Shortly thereafter, the Nevyases learned of the website, and their counsel sent Morgan a cease and desist letter under threat of action for injunctive relief. The Nevyases' counsel also sent a letter to Yahoo, Inc., which hosted the website.

Feeling "threatened" but not "about to give up his right to free speech," Morgan wrote to the Nevyases' counsel on August 1, 2003, and agreed to "remove any stated libelous reference to the Nevyas[es] and their practice only." He further wrote in his letter that he would not remove the website in its entirety and that he would be updating it with information regarding his health history, the legal issues pertaining to his case, and "all necessary documentation substantiating those facts within the legal guidelines as allowed by the law and the First Amendment which grants me freedom of speech."

Morgan did edit his website as he indicated, but Yahoo shut the site down in response to demands of the Nevyases' counsel. This prompted Morgan to switch to another internet provider to host the website with the same name. The new site contained references to the Nevyases. In response, the Nevyases filed a Complaint against Morgan on November 7, 2003, containing counts for defamation, breach of contract and specific performance. A few days later, they filed a Petition for Temporary Restraining Order and Preliminary Injunction, which was denied by the court. An Amended Complaint was filed, and Morgan filed an Answer with New Matter, which raised the constitutional right to free speech as a defense.

The Nevyases' action proceeded to non-jury trial on July 26, 2003, limited to the cause of action for specific performance. The Nevyases' claim was described as follows:

"Plaintiff's [sic] and Morgan entered into a contract whereby defendant agreed to remove any and all references to plaintiff's [sic] and their medical practice from the website and plaintiff agreed not to file a defamation lawsuit against Morgan. Defendant . . . has willfully breached the contract by reconstructing the . . . [www.lasiksucks4you.com] website replete with references to plaintiff's and their medical practice . . ."

The Nevyases were seeking relief in the form of compelling specific performance on the part of Morgan to honor the existing contract and to remove any and all references in the website pertaining to the plaintiffs and their medical practice and to desist from defaming the plaintiffs. During the presentation of evidence, the parties put on conflicting witnesses and submitted deposition testimony regarding Morgan's rationale for editing his website and the substance of the agreement reached in August of 2003. There was even testimony from Morgan's attorney, who had been joined as a defendant as well, regarding his understanding of what Morgan had agreed to do to his website and the basis for any changes. The trial court determined that Morgan and the Nevyases had entered into an agreement and found in favor of the Nevyases. The trial court found that "the parties had agreed that in exchange for the Nevyas[es]' agreement to refrain from filing a lawsuit against Morgan for defamation, Morgan would remove all defamatory statements from the site and refrain from doing so in the future." The trial court also entered an Order that precluded Morgan from "mentioning the Nevyases at all" in his website.

Morgan filed a timely Appeal, and the Superior Court reviewed a number of procedural and substantive issues from the underlying action. The main issue, however, was whether Morgan had agreed to stop mentioning the Nevyases and their practice on any website. The Superior Court analyzed the law with respect to breach of contract and took specific note of the trial court's position that "Morgan's alteration of his website was in fact the offer which was accepted by the plaintiff for mutual consideration." Recognizing that speech on the internet receives First Amendment protection, See Reno v. ACLU, 521 US 844, 869 (1997), the court addressed the trial court's finding that Morgan had waived his First Amendment rights and agreed not to mention the Nevyases or their medical practice on his internet website. Ultimately, the Superior Court found no error in the trial court's finding with respect to defamatory statements that were contained on the website as of July 30, 2003. However, it was unwilling to uphold the trial court's decision regarding all other references to the Nevyases on the website.

The Superior Court carefully analyzed the cease and desist letter dated July 30, 2003, presented to Morgan by the Nevyases' attorney, as well as Morgan's response letter dated August 1, 2003, in which he noted that he would conform "to your request insofar as to remove any stated libelous reference to the Nevyases and their practice only." The appellate judges were impressed, however, that Morgan wrote that he would not be removing the website in its entirety and that he would be updating it in several respects.

When Morgan created his second website, he simply uploaded the original version, which contained no reference to the Nevyases or their medical practice. The Superior Court upheld the trial court decision that Morgan had agreed to take down the specific libelous wording from his website as posted on July 30, 2003, and that, pursuant to the agreement, those specific libelous statements were to be prohibited thereafter. The Superior Court, however, did not agree that Morgan's uploading of the original website content, which contained no reference to the Nevyases or their medical practice, constituted an agreement on his part to never mention them again, even in a non-defamatory context. The Superior Court endorsed Morgan's letter, which specifically reserved the right to update his website under First Amendment guidelines.

The Superior Court found that the trial court's interpretation of the agreement was incongruous with Morgan's August 1, 2003, letter and emphasized black letter law that in order to form an enforceable contract, there must be an offer, acceptance, consideration or a mutual meeting of the minds. See Jenkins v. County of Schuylkill, 658 A.2d 380, 383 (Pa.Super. 1995), appeal denied, 666 A.2d 1056 (Pa. 1995). The court did not agree that there was a mutual meeting of the minds with respect to the content of Morgan's website after his initial edit. Significantly, the Superior Court also found that "Morgan did not agree to waive his right to make, if he so chooses and at his own risk, libelous statements in the future, unrelated to the statements on his website as of July 30, 2003."

The Nevyas decision could have a significant impact in the health care field, especially in terms of the relationship between patients and physicians. In this internet age and with tremendous advances in communication capabilities, there is really nothing to prevent a disgruntled patient from expressing his or her views on an internet site regarding health care experience as long as it is done in a non-defamatory manner. If Morgan chooses to include defamatory comments on his website regarding the Nevyases in the future, he does so at his own risk, and the probabilities are that he will be on the receiving end of yet another lawsuit. However, the Nevyas decision clearly holds that there was no contract or agreement precluding Morgan from mentioning the Nevyases at all on his website.

In retrospect, the Nevyases' concerns most likely could have been avoided had there been a confidentiality clause contained within the original agreement to proceed to binding high/low arbitration. Unfortunately for the Nevyases, there was no such confidentiality agreement in place, and, further, there was no meeting of the minds between the parties regarding the future content of Morgan's website. In all probability, the dispute between the Nevyases and Morgan will manifest itself in some other form in the future.

*Kevin is a shareholder in our King of Prussia, Pennsylvania, office. He can be reached at (610) 354-8252 or tkfitzpatrick@mdwcg.com.