August 7, 2017

Statements Required By Law Are Not Protected By Anti-SLAPP Statute; Gresk v. Demetris

Category: Indiana Law Review | Author: | Share:

Full Disclosure: My firm represented the Appellants in this matter.

One of our basic rights is the right to free speech, and a lawsuit filed in order to prevent someone from exercising that right about an issue of public interest is called a SLAPP (Strategic Lawsuit Against Public Participation) suit. Indiana protects those rights through its anti-SLAPP statute, which speeds the review of the First Amendment claim and authorizes the award of attorney’s fees to a prevailing defendant. The question posed by this case is whether that statute protects someone who is sued because of speech made pursuant to a statutory duty.

Stacey and Derek VanWinkle have two children, M.V. and A.V. Since birth, A.V. has experienced several medical issues—including gastrointestinal (GI) issues, urinarytract issues, muscular issues, and neurological issues—and has undergone several medical procedures. Dr. Maisel treated A.V., and became concerned that A.V.’s symptoms were being exaggerated by Stacey. Dr. Maisel referred A.V. to Dr. Demetris, who is board certified in both pediatrics and child-abuse pediatrics and the co-director of the hospital’s Child Protection Team, with concerns that A.V. was a victim of medical child abuse.

Dr. Demetris had A.V. admitted to the hospital. She observed the child, and saw no significant medical complaints. Therefore, she came to the conclusion that Stacey was subjecting A.V. to medical child abuse, and noted this in A.V.’s chart. The Department of Child Services was contacted, and the children were removed from the VanWinkles’ home. DCS began a CHINS case against the VanWinkles, and substantiated the neglect and abuse allegations. A trial court ultimately reversed these findings.

The VanWinkles filed a proposed complaint for medical malpractice against Dr. Demetris with the Indiana Department of Insurance. Dr. Demetris moved to dismiss under Indiana’s anti-SLAPP statute, and the trial court granted that motion. The VanWinkles appealed.

On appeal, the Court recognized that the issue of whether Dr. Demetris’s report of child abuse was protected by the anti-SLAPP statute was an issue of first impression. It then described the three categories of statements that receive anti-SLAPP protection: (1) cases concerning a person or entity in the public eye; (2) cases involving conduct that could directly affect a large number of people beyond the direct participants; and (3) cases involving a topic of widespread, public interest. Of these categories, “[t]he only category that could possibly apply is the third category.”

The question of whether this third category applied depended on whether this category is applied broadly or narrowly, and the Court chose a narrow approach. Even though it recognized that child abuse is a topic of widespread, public interest, the allegations against the VanWinkles were not.

While child-abuse detection and prevention, on a macro level, is of great interest to the general public, the public interest in the more narrow issues addressed by Dr. Demetris’s report to DCS that she believed A.V. was the victim of medical child abuse is not significant. This is because this was a private matter. The call to the DCS hotline was confidential by statute. Any reports generated by DCS in response to the call were confidential by statute, and any juvenile-court proceedings were confidential by statute as well. In other words, there generally cannot be widespread, public interest in individual child-abuse cases because our confidentiality statutes and rules are designed to limit such interest.

Therefore, Dr. Demetris’s statements did not fall into this third category, either.

But the Court did not end its analysis there. The Court also found that Dr. Demetris did not make her statements in furtherance of any constitutional right. Rather, she made them because she was required to do so by statute. “This is inconsistent with any claimed intent to engage in public debate or to petition the government.”

The trial court’s judgment was reversed, and the case was remanded.

Lessons:

  1. Indiana’s anti-SLAPP statute governs three categories of statements, and if a statement does not fall into one of those categories, it is not likely protected.
  2. One category of protected statements is those made which involve a topic of widespread, public interest; statements about individuals which relate to public issues may not be protected.
  3. Statements made pursuant to a statutory duty are not protected by Indiana’s anti-SLAPP statute.

 

How does Anit-SLAPP apply to Political Speech?