Tiffany Abbott, Cathie Barnes, and Chandra Gray v. Individual Support Home Health Agency, Inc.

FILED

May 13 2020, 6:38 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE

Ryan P. Sink Mark J. Crandley

Fox, Williams & Sink, LLC Barnes & Thornburg, LLP

Indianapolis, Indiana Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE

STATE OF INDIANA

Curtis T. Hill, Jr.

Attorney General of Indiana

Thomas M. Fisher

Solicitor General

Aaron T. Craft

Section Chief, Civil Appeals

Kian J. Hudson

Deputy Solicitor General

Julia C. Payne

Sarah J. Shores

Deputy Attorneys General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Court of Appeals of Indiana | Opinion 19A-PL-2367 | May 13, 2020 Page 1 of 13

Tiffany Abbott, Cathie Barnes, May 13, 2020

and Chandra Gray,1 Court of Appeals Case No.

Appellants-Defendants, 19A-PL-2367

Interlocutory Appeal from the

v. Henry Circuit Court

The Honorable Kit C. Dean Crane,

Individual Support Home Health Judge

Agency, Inc., Trial Court Cause No.

Appellee-Plaintiff. 33C02-1904-PL-34

Mathias, Judge.

[1] Tiffany Abbot, Cathie Barnes, and Chandra Gray (collectively “the

Appellants”) have filed an interlocutory appeal of the Henry Circuit Court’s

order denying the motion to dismiss the complaint filed by their former

employer, Individual Support Home Health Agency, Inc. (“Home Health”).

The Appellants argue that reports they made to the Indiana State Department

of Health (“the ISDH”) are protected by absolute privilege and cannot serve as

a basis for any civil lawsuit.

[2] Concluding that the Appellants’ reports are protected by absolute privilege, we

reverse.

1

Ashley McCartney and Angie Benefiel were also defendants below, but neither filed an appearance or

otherwise participates on appeal. However, pursuant to Ind. Appellate Rule 17(A), “[a] party of record in the

trial court . . . shall be a party on appeal.”

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Facts and Procedural History

[3] Home Health provides healthcare services to homebound patients, and its

services are regulated by the ISDH. Home Health employed the Appellants,

who are licensed nurses, to serve as case managers for the company’s patients.

[4] In 2017, the Appellants made reports to the ISDH claiming that Home Health

employees forged the Appellants’ signatures on documents related to patient

care. Home Health alleged that the reports were false, and the Appellants acted

out of malice after receiving poor performance reviews. The ISDH investigated

the Appellants’ reports and concluded that the forgery reports were not

substantiated.

[5] Home Health claims the Appellants also encouraged other employees to make

false reports to the ISDH. After Appellants terminated their employment with

Home Health, they induced other Home Health employees to terminate their

employment.

[6] On April 29, 2019, Home Health filed a complaint against the Appellants for

defamation, tortious interference with a contract, and tortious interference with

a business relationship. On June 25, 2019, the Appellants filed a motion to

dismiss the complaint and argued that their statements to the ISDH were

absolutely privileged. The trial court denied the Appellants’ motion to dismiss,

and at the Appellants’ request, the court certified its order for interlocutory

appeal. Our court accepted jurisdiction over the appeal on November 8, 2019.

Court of Appeals of Indiana | Opinion 19A-PL-2367 | May 13, 2020 Page 3 of 13

Standard of Review

[7] The trial court denied the Appellants’ Trial Rule 12(B)(6) motion to dismiss.

We review a trial court’s ruling on a 12(B)(6) motion using a de novo standard,

meaning no deference is given to the trial court’s decision. Lei Shi v. Cecilia Yi,

921 N.E.2d 31, 36 (Ind. Ct. App. 2010). “The grant or denial of a motion to

dismiss turns only on the legal sufficiency of the claim and does not require

determinations of fact.” Id. at 36–37. “A motion to dismiss under Rule 12(B)(6)

tests the legal sufficiency of a complaint: that is, whether the allegations in the

complaint establish any set of circumstances under which a plaintiff would be

entitled to relief.” Id. at 37. We consider the pleadings and reasonable

inferences in the light most favorable to the nonmoving party. Id.

Discussion and Decision

[8] The Appellants filed a motion to dismiss Home Health’s complaint arguing that

their reports to the ISDH are cloaked with absolute privilege and cannot serve

as the basis for any civil suit.

I. Absolute Privilege

[9] “Indiana law has long recognized an absolute privilege that protects all relevant

statements made in the course of a judicial proceeding, regardless of the truth or

motive behind the statements.” Hartman v. Keri, 883 N.E.2d 774, 777 (Ind.

2008) (citations omitted). “The reason upon which the rule is founded is the

necessity of preserving the due administration of justice . . . by providing actors

Court of Appeals of Indiana | Opinion 19A-PL-2367 | May 13, 2020 Page 4 of 13

in judicial proceedings with the freedom to participate without fear of future

defamation claims.” Id. (citations and quotations omitted).

[10] Historically, absolute privilege was only recognized in formal judicial

proceedings. But, in Hartman, our supreme court considered whether

complaints of sexual harassment made by Purdue University graduate students

against a professor were protected by absolute privilege. The students filed

formal complaints alleging sexual harassment with the Purdue Affirmative

Action Office. The professor was notified of the complaints and was permitted

to respond. An investigation ensued, and the investigator found that the

professor had harassed one student and had created a hostile educational

environment. The investigator’s findings were reviewed by a three-person

panel, and the panel adopted her recommendation to immediately remove the

professor from his teaching responsibilities. The professor appealed the

determination to Purdue’s president, who upheld the panel’s decision.

[11] The professor filed a complaint in Allen Superior Court against the students

alleging libel, slander, and malicious interference with his employment

contract. The students moved for summary judgment and argued that their

complaints made pursuant to Purdue policy were protected by an absolute

privilege.

[12] This issue was ultimately resolved in the students’ favor by our supreme court.

The court observed:

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[The students] acted under the procedure Purdue established.

Protecting their complaints with anything less than an absolute

privilege could chill some legitimate complaints for fear of

retaliatory litigation. Other faculty-student disputes would result

in traditional litigation rather than academic resolution to avoid

any risk of loss of the absolute privilege accorded statements in

judicial proceedings. A university should be given the latitude to

tailor its processes to the educational environment without

degrading the protection the law gives to complaints of

misconduct in the educational setting.

Id. at 778.

[13] The court noted that as a deterrent to false reporting, enrolled Purdue students

are subject to academic discipline for abuse of process. Id. “[T]he need for

protection is greater in the educational setting because the subject of the

complaint—the educator—is in a position of authority over the student, so fear

of retaliation presents a potential obstacle to open airing of grievances.” Id.

Importantly, the Hartman court extended absolute privilege to statements made

during quasi-judicial proceedings. Id.

II. The Appellants’ Reports to the ISDH

[14] The ISDH is responsible for licensing and regulating home-healthcare agencies.

Ind. Code §§ 16-27-1-7, 16-27-1-8, 16-27-1-12. Indiana Code section 16-27-1-7

requires the ISDH to “adopt rules” to “[p]rotect the health, safety, and welfare

of patients” and “[g]overn the procedure for issuing, renewing, denying, or

revoking an annual license to a home health agency[.]”

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[15] The ISDH relies on employee reports to regulate home-healthcare agencies and

to protect the vulnerable patients those agencies serve. See 848 Ind. Admin

Code 2-2-2(11), 2-2-3(13). In its Amicus Curiae Brief, the State argues that

“chilling the report of substandard care could have disastrous, even fatal,

consequences.” Amicus Curiae Br. at 10.

[16] Home Health repeatedly argues that our courts have not extended absolute

privilege to “a false report of wrongful conduct” made to a regulatory agency.

Appellee’s Br. at 9–10. However, the veracity of the Appellants’ reports to the

ISDH is irrelevant to our inquiry. 2 Our inquiry is whether the reports were

made in the context of a judicial or quasi-judicial proceeding.

2

The ISDH did not find that Appellants’ reports of forgery were false, just that they were not substantiated.

This finding equates to lack of proof of the report, not that the report was necessarily false. See Merriam-

Webster Online Dictionary (defining “substantiate” as “to establish by proof or competent evidence”),

https://www.merriam-webster.com/dictionary/substantiate (last visited April 29, 2020)

[https://perma.cc/8GBB-VFNK].

Reports of substandard care have led to the revocation of Home Health’s license, which is currently

pending judicial review. Home Health complains that the Appellants should not have included the

administrative law judge’s order in their appendix because the order was not included in the trial court’s

record in these proceedings and was issued after the trial court denied the Appellants’ motion to dismiss.

Home Health’s argument is well-taken; however, the fact that Home Health has filed a petition for judicial

review in Henry Circuit Court of the administrative law judge’s order revoking its license is a matter of public

record. Pleadings and actions are obtainable from Odyssey, the statewide electronic case management

system. In Horton v. State, 51 N.E.3d 1154, 1160–61 (Ind. 2016), our Supreme Court observed that Evidence

Rule 201(b)(5) “now permits courts to take judicial notice of ‘records of a court of this state’” and that such

records are presumptively sources of facts “that cannot reasonably be questioned.”

In publicly filed pleadings in cause number 33C01-2002-MI-19, the judicial review proceeding, the

ISDH alleges that a wheelchair-bound patient died after an aide failed to attend the patient during an evening

visit, because the aide was not feeling well. The ISDH also alleges that a home health aide was performing

unsupervised catheterizations for another patient, which she failed to document, and only nurses have

authority to perform catheterizations unless that duty is delegated to the aide under the nurse’s supervision.

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[17] Home Health asserts the Appellants did not make their reports to the ISDH in a

judicial or quasi-judicial proceeding. Home Health attempts to analogize the

statements made by the Appellants in this case to communications made to law

enforcement reporting criminal activity, which are afforded only qualified

privilege. See e.g. Williams v. Tharp, 914 N.E.2d 756, 763 (Ind. 2009).

[18] In Hartman, our supreme court addressed a similar argument and noted that “it

may seem anomalous to grant a higher degree of protection to complaints made

in the educational setting.” 883 N.E.2d at 778. The court observed that there

were substantial deterrents to the students submitting false reports concerning

faculty conduct. And “the need for protection is greater in the educational

setting because the subject of the complaint—the educator—is in a position of

authority over the student, so fear of retaliation presents a potential obstacle to

open airing of grievances.” Id. The Hartman court concluded that “there is both

a diminished need to deter false reporting and a greater need to encourage

reporting than exists outside the educational environment.” Id.

[19] Here, there are also substantial deterrents to false reporting. Licensed health

care professionals are expressly prohibited from “engag[ing] in fraud or material

deception in the course of professional services or activities[.]” Ind. Code § 25-

1-9-4(b). Sanctions for engaging in fraud or deception include revoking or

suspending a practitioner’s license or imposing a fine. I.C. § 25-1-9-9. In

addition, false reporting will likely impact the health care professional’s current

employment and possibly his or her future employment as well. And Home

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Health, the employer, is unquestionably in a position of power over the

Appellants.

[20] Moreover, and even more compelling than the circumstances in Hartman, the

Appellants are obligated to report substandard care to the ISDH. Failing to do

so can result in sanctions, including the revocation of their licenses. See 848

I.A.C. §§ 2-2-2(1)(11); 2-2-3(6)(13).

[21] The United States District Court for the Northern District of Indiana relied on

Hartman to conclude that reports of a patient injury to the ISDH were made in

the context of a quasi-judicial proceeding covered by absolute privilege. Doswell

v. Trace, 2016 WL 3685119 (N.D. Ind. 2016). In that case, Tanglewood Trace,

an assisted living facility, reported injuries suffered by a resident patient while

in a nursing assistant’s care. Doswell, the nursing assistant, was employed by

Maxim, a temporary staffing agency. As a result of the neglect report, Doswell’s

license was temporarily suspended. An administrative law judge eventually

determined that Doswell was not negligent in her care of the resident patient.

[22] Doswell filed a complaint against Maxim and Tanglewood Trace for libel and

slander alleging that the entities maliciously started the license-revocation

proceeding and made false statements about Doswell. The defendants argued

that they had a legal obligation to report the injury to the Department of Health

and that their statements were immune under the absolute privilege for

statements made in quasi-judicial proceedings. Doswell conceded that the

defendants had a legal obligation to report the injury to the resident patient.

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[23] The District Court determined that the report and investigation by the ISDH

was a quasi-judicial proceeding.

The proceeding was governed by the Administrative Orders and

Procedures Act, IC 4-21.5. The reporting of the incident resulted

in an investigation by the Indiana Department of Health

pursuant to 42 C.F.R. § 483.156, findings, a right to appeal, a

hearing before an Administrative Law Judge where evidence was

presented, and an issuance by the Administrative Law Judge of

findings of fact and conclusions of law.

Id. at *4. And after reiterating the defendants’ legal obligation to report the

patient’s injury, the court concluded that “any communication with the Indiana

Department of Health was made in the course of a judicial or quasi-judicial

proceeding, and is covered by an absolute privilege.” Id.

[24] Reports of patient injury or substandard care to the ISDH, which result in a

“survey” or investigation by the ISDH, are governed by procedures that the

ISDH has established pursuant to the Administrative Orders and Procedures

Act, IC 4-21.5, as mandated by our General Assembly. See Ind. Code § 16-27-1-

7. Therefore, we conclude that such proceedings constitute quasi-judicial

proceedings.

[25] Home Health also argues that the Appellant’s reports were not made in an

ongoing quasi-judicial proceeding. However, the cases Home Health cites in

support of its argument do not involve reports to a quasi-judicial entity charged

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with investigating reports of misconduct.3 Like the students’ complaints in

Hartman, here, the Appellants’ reports to the ISDH initiated a “survey,” i.e. an

investigation of Home Health. The Appellants’ reports initiated the quasi-

judicial proceedings at issue in this case.

[26] We must protect vulnerable individuals suffering from an illness or disability

who require assistance from healthcare professionals. If a report made by a

healthcare professional is not absolutely privileged, it could have a chilling

effect on such reports. Extending absolute privilege to reports made to the

ISDH protects healthcare professionals against the fear of retaliatory litigation.

[27] For all of these reasons, we conclude that the Appellants’ reports to the ISDH

are protected by absolute privilege.

III. Tortious Interference Claims

[28] Home Health argues that its tortious interference with a contract and tortious

interference with a business relationship claims should not be dismissed even if

the Appellants’ reports are protected by absolute privilege because the

Appellants induced Home Health employees to terminate their employment.

But our court has held that “[o]ther torts related to defamation, or relying upon

defamatory statements as proof of wrongdoing, may also be barred by the

3

For example, Home Health relies on Eckerle v. Katz & Korin, P.C., 81 N.E.3d 272, 282 (Ind. Ct. App. 2017),

which discussed whether statements made prior to a proposed judicial proceeding were privileged, and Britt

Interactive LLC v. A3 Media LLC, 2017 WL 2118513 (S.D.Ind. May 15, 2017), which addressed statements

made between private parties prior to any litigation. We are unpersuaded by Home Health’s reliance on these

cases involving easily distinguishable circumstances.

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absolute privilege.” Estate of Mayer v. Lax, Inc., 998 N.E.2d 238, 249 (Ind. Ct.

App. 2013) (citing Hartman, 883 N.E.2d at 776–77) (concluding that “the

absolute privilege bars Lax and Lasco’s actions for defamation, negligent

supervision and retention, tortious interference with a business relationship, and

tortious interference with a contract”), trans. denied.

[29] Home Health’s claim that the Appellants’ made false reports to the ISDH are

integral to its tortious interference claims.4 See e.g. Appellants’ App. pp. 15–16

(“By making the False Reports, the Defendants intentionally induced patients

to breach their contracts with” Home Health and “[t]he Defendants were aware

of the existence of these contracts, including at the time they made the False

Reports and induced [Home Health] employees to leave their employment with

the company”). For this reason, Home Health’s tortious inference claims must

also be dismissed.

4

The Appellants counter that encouraging employees to resign falls significantly short of meeting numerous

necessary elements for any tortious interference claim. For example, a plaintiff must prove “some

independent illegal action” to prevail on his claim of tortious interference with a business relationship. See

Brazauskas v. Fort Wayne-South Bend Diocese, Inc., 796 N.E.2d 286, 291 (Ind. 2003). And defamation “does not

constitute illegal conduct for the purpose of determining whether one tortiously interfered with the business

relationship of another.” Miller v. Cent. Ind. Cmty. Found., Inc., 11 N.E.3d 944, 961 (Ind. Ct. App. 2014), trans.

denied. In its complaint, Home Health did not allege that the Appellants engaged in any independent illegal

action.

With regard to the tortious interference with a contract claim, in its complaint, Home Health did not allege

that any actual breach of contract occurred or that a breach of contract caused any damages. See Allison v.

Union Hosp., Inc., 883 N.E.2d 113, 118 (Ind. Ct. App. 2008) (“A plaintiff alleging tortious interference with a

contractual relationship must establish five elements: (1) the existence of a valid and enforceable contract; (2)

the defendant's knowledge of the existence of the contract; (3) the defendant's intentional inducement of the

breach of the contract; (4) the absence of justification; and (5) damages resulting from the defendant's

wrongful inducement of the breach.”).

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Conclusion

[30] The Appellants’ reports to the ISDH are protected by absolute privilege because

the reports initiated a quasi-judicial proceeding. Therefore, the trial court erred

when it denied the Appellants’ motion to dismiss Home Health’s complaint.

We therefore reverse and remand this case to the trial court with instructions to

dismiss Home Health’s complaint.

[31] Reversed and remanded for proceedings consistent with this opinion.

Riley, J., and Tavitas, J., concur.

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