EK HEALTH

by Steve Kline, Esq.
EK Health Services' Legal Counsel

There is old adage from the 1980s: “Don’t write anything that will embarrass you if it was to appear on the front page of the New York Times.” It is too often forgotten. As we approach 2011, the pressure has increased and with YouTube and search engines, it can safely be said that privacy is extremely limited.

In California, there is a special class of speech that is protected by California Code of Civil Procedure §425.16, the anti-SLAPP statute. “Section 425.16 applies to any cause of action against a person ‘arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue...’. It is used to prevent one from being sued for defamation and other causes of action, if the words used are related to litigation, judicial proceedings or other protected activity.”

An interesting civil case has been recently reported, albeit unpublished, Meadows v. Farrell (H035309) from the Sixth District Court of Appeal in San Jose. Ms. Meadows was an injured worker and the defendant was her nurse case manager (Not an EK Health nurse). During her service to the injured worker, the nurse allegedly made and repeated certain statements to Ms. Meadows about returning to work, losing her job, and possible drug addiction.

Ms. Meadows alleged in her civil complaint, among other things, that these words caused her emotional distress for which she sought civil damages. The nurse responded with a motion to strike the lawsuit based on the anti-SLAPP statute, in that her words were protected and immune from suit because she was part of a worker’s compensation claim.

The Trial Court ruled and the Court of Appeal agreed that the nurse ‘s speech was not a protected activity.

The Court reasoned that the nurse’s statements were not protected because they did not concern issues under consideration or review by the Workers' Compensation Appeals Board.  “The defendant's statement must have a "connection to an issue under review in a proceeding, and not merely to a proceeding.... If the statement "bear[s] no relationship to" or has "nothing to do with the claims under consideration" in the proceeding, then the statement will not be protected under the anti-SLAPP statute.”

The Court stated that the nurse “fails to show that her alleged statements concerning Meadows potentially getting fired, including the reference to chiropractic care, were connected to issues being considered or reviewed by the Workers' Compensation Appeals Board.” Ms. Meadows workers' compensation case had been dismissed.

Thus, the lawsuit in Superior Court will continue to trial or settlement.

Words and expressions have consequences. In our information age, they can be as deadly as weapons. The lesson for nurse case managers, examiners and others is that while there is some protection for our speech, care must be taken to let reason prevail over emotion.

Let facts and observations take priority over conclusions and judgments. Avoid as many adjectives and adverbs as you can in your writing and speech. Document in objective detail. Think about your words being on the front page of the New York Times. If needed, take a short break before finalizing the words.  Another safety valve is to talk with a manager to review the words and situation.

Have a pleasant holiday season. May the spirit of this time be with us for all 365 days.

---- Stephen L. Kline, Esq.