The Indiana Supreme Court held in its opinion filed on May 10, 2018 that the Indiana anti-SLAPP statute was inapplicable in the Indiana medical malpractice case it was deciding because to be protected under Indiana’s anti-SLAPP statute, a person’s actions must be “in furtherance of” his or her right of petition or free speech and “in connection with a public issue.” Ind. Code § 34-7-7-5 (2017).
In the case the Indiana Supreme Court was deciding, two minors and their parents filed an Indiana medical malpractice lawsuit against a doctor who reported suspected medical child abuse to the Department of Child Services (“DCS”), alleging that the defendant’s diagnosis of medical child abuse fell below the standard of care. The doctor claimed the lawsuit was a SLAPP and her report to DCS was protected speech shielded by Indiana’s anti-SLAPP statute. The trial court agreed and dismissed the lawsuit. The plaintiffs appealed.
Since at least the 1970s, ordinary individuals were being sued for simply speaking out politically. These lawsuits implicitly challenged free speech or petition rights and sent the message that there was a price for civic engagement (i.e., a high-dollar retaliatory lawsuit – a meritless attempt at chilling participation in government). The goal of these so-called SLAPP (Strategic Lawsuits Against Public Participation) lawsuits was not to win, but to silence opposition with delay, expense, and distraction.
Many states have adopted anti-SLAPP statutes that balance a plaintiff’s right to have his or her day in court and a defendant’s free speech and petition rights, while simultaneously providing a framework to distinguish between frivolous and meritorious cases. If the lawsuit stems from a legitimate legal wrong, it is not a SLAPP. But, if the lawsuit is filed for an ulterior political end, it is a SLAPP. Anti-SLAPP statutes establish key procedural tools to safeguard First Amendment rights.
Indiana’s Anti-SLAPP Statute
Indiana adopted its anti-SLAPP statute in 1998 to address and reduce abusive SLAPP litigation. 1998 Ind. Acts 1403-06 (codified at I.C. §§ 34-7-7-1 to -10). Defendants may invoke the anti-SLAPP defense when faced with a civil action for acts or omissions “in furtherance of the person’s right of petition or free speech” under the United States Constitution or Indiana Constitution “in connection with a public issue” and “taken in good faith and with a reasonable basis in law and fact.” I.C. § 34-7-7-5.
Once an anti-SLAPP motion to dismiss is filed, discovery is stayed except as necessary to respond to the issues raised in the motion. §§ 34-7-7-6, -9(a)(3). Defendants who successfully invoke the statute’s defense are entitled to dismissal and reasonable attorney’s fees and costs. § 34-7-7-7. But, if an anti-SLAPP motion is “frivolous” or “solely intended to cause unnecessary delay,” the plaintiff may recover such fees and costs associated with answering. § 34-7-7-8. Dismissal under the statute is in addition to other remedies provided by the law. § 34-7-7-10.
In resolving an anti-SLAPP motion to dismiss, the court must determine three things: (1) whether an action was “in furtherance of the person’s right of petition or free speech;” and, (2) if so, whether the action was “in connection with a public issue.” § 34-7-7-5(1). If both requirements are satisfied, the court then analyzes (3) whether the action was “taken in good faith and with a reasonable basis in law and fact.” § 34-7-7-5(2).
The Indiana Supreme Court held in the case it was deciding that the Indiana anti-SLAPP statute was inapplicable because the defendant’s report was not made pursuant to her right of petition or free speech. The Indiana Supreme Court further held that by simply reporting her statutorily-required diagnosis to DCS, the defendant was not engaged in any political advocacy guaranteed to her under the right to petition the government, and the defendant’s report was not made pursuant to her free-speech rights because (1) it was the product of a statutory duty, not a constitutional right; and (2) it was confidential.
The Indiana Supreme Court stated that the defendant’s report was not speech in relation to her participation in government, and the plaintiffs’ Indiana medical malpractice lawsuit alleged a legitimate legal wrong (i.e., medical care which they believe fell below the standard of care and resulted in damages) and therefore it was not an attempt to silence the defendant from making these types of reports or diagnoses.
The Indiana Supreme Court further stated that while child abuse in certain instances may be an issue of public interest, it is not in this case: the form of the defendant’s report was confidential, including content specific to one minor and potential abuse by her parents. The Indiana Supreme Court stated that it agreed with the defendant that child abuse reporting is of general public interest and, indeed, to further that interest the legislature has provided immunity to those who report, but that does not make every report a newsworthy event, particularly when the substance of the report is confidential and concerns a private matter. Thus, based on the narrow content, form, and context of this report — medical child abuse of one child — it was not a matter of public concern.
Source Gresk v. Demetris, Supreme Court Case No. 49S02-1711-MI-68.
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