Paul Gresk, Trustee for the Bankruptcy Estate of Derek VanWinkle and Stacey VanWinkle on behalf of M.V. and A.V., their minor children, Appellants-Respondents,
Cortney Demetris, M.D., Appellee-Petitioner Stephen W. Robertson, Commissioner of the Indiana Department of Revenue, Party in Interest
from the Marion Superior Court The Honorable John M.T.
Chavis, II, Judge Trial Court Cause No. 49D05-1510-MI-35716
ATTORNEYS FOR APPELLANTS Ronald J. Waicukauski Price
Waicukauski Joven & Catlin, LLC Indianapolis, Indiana
William W. Gooden Maggie L. Sadler Clark Quinn Moses Scott
& Grahn, LLP Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Bryce H. Bennett, Jr. Laura S. Reed
Laura K. Binford Courtney David Mills Riley Bennett Egloff
LLP Indianapolis, Indiana
Vaidik, Chief Judge.
A minor and her family filed a medical-malpractice complaint
against a doctor after the doctor reported to the Department
of Child Services (DCS) that the minor was a victim of
medical child abuse. The doctor filed a motion to dismiss the
complaint pursuant to Indiana's anti-SLAPP (Strategic
Lawsuit Against Public Participation) statute, which protects
a person's right of petition or free speech under the
federal and state constitutions "in connection with a
public issue or an issue of public interest." The doctor
claimed that her report to DCS was protected by the
anti-SLAPP statute. The trial court agreed, finding that the
doctor spoke about a public issue or an issue of public
interest when she made the report to DCS.
We find that the anti-SLAPP statute does not apply to reports
of child abuse or neglect made to DCS. While child-abuse
detection and prevention, on a macro level, is of great
interest to the general public, individual reporting is not.
Furthermore, the doctor's report was not made "in
furtherance of" her constitutional rights, as required
by the anti-SLAPP statute, but rather because of her
statutory duty to report child abuse or neglect. We therefore
reverse and remand.
and Procedural History
Stacey and Derek VanWinkle have two children, M.V., born in
1999, and A.V., born in 2001. Stacey was a
neonatal-intensive-care-unit nurse at an Indianapolis
hospital, and Derek was a stay-at-home father. Since birth,
A.V. has experienced several medical issues-including
gastrointestinal (GI) issues, urinary-tract issues, muscular
issues, and neurological issues-and has undergone several
medical procedures. Relevant to this appeal, A.V. became a
patient of Dr. Susan Maisel, a pediatric gastroenterologist
at Peyton Manning Children's Hospital at St. Vincent, in
2004. In May 2013, Dr. Maisel became concerned that
A.V.'s symptoms were being exaggerated by Stacey. Dr.
Maisel recommended admitting A.V. to the hospital to observe
her GI symptoms. She also contacted Dr. Cortney 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. Medical child abuse-formerly called
Munchausen Syndrome by proxy-is a form of child abuse whereby
a child suffers at the hands of healthcare providers who
perform unnecessary and potentially risky testing or
interventions on the child due to false reporting by the
child's caregiver to the medical team. See
Appellee's App. Vol. V p. 26.
As a result of Dr. Maisel's recommendations, on June 10,
2013, A.V. was admitted to Peyton Manning Children's
Hospital for observation of her GI symptoms. Dr. Demetris was
A.V.'s attending physician. During her stay, A.V.
underwent a GI procedure performed by Dr. Maisel; the results
of this procedure were normal. Covert video surveillance
(CVS) was also set up in A.V.'s hospital room. Someone
watched the CVS feed at all times and documented what
happened. On June 12, Dr. Demetris made the following notes
in A.V.'s chart:
After my review of the sitter's notes regarding the CVS
and many personal hours of CVS review (17 hours)-[A.V.] is
not having any significant medical complaints. She is seen to
be eating well, moving around well, interacting in an age
typical manner (largely), and not complaining to her parents
of any medical complaints. Overall, I see a well appearing
Based on my review of the video feed, my conversations with
several other physicians who have cared for [A.V.], and my
interactions with [A.V.] and her parents, it is my belief
that she suffers from a form of child abuse called Medical
Child Abuse (formerly called Munchausen Syndrome by proxy).
Medical Child Abuse is a form of child abuse in which the
child suffers at the hands of medical providers based on
false parental reporting of symptoms in the child. This false
parental reporting leads to the child being subjected to many
medical visits, medications, tests, and procedures.
Appellants' App. Vol. II p. 127. Dr. Demetris recommended
continued hospitalization so that they could start to
"sort out" "the true medical problems from
those that do not exist." Id. at 128. That same
day, a hospital social worker called DCS to report Dr.
Demetris's diagnosis of medical child abuse. See
Ind. Code ch. 31-33-5 (duty to report child abuse or
neglect). A.V. was discharged from the hospital that night.
A DCS official later contacted Dr. Demetris to schedule a
care conference, which was held on June 17. Participants
included Dr. Demetris and Dr. Maisel, DCS and law-enforcement
officials, and healthcare providers from several area
hospitals. Later that same day, DCS removed M.V. and A.V.
from their parents and re-admitted A.V. to Peyton Manning
Children's Hospital. DCS also filed a petition alleging
that the children were in need of services (CHINS).
Appellants' App. Vol. II pp. 130-31 (alleging that the
children's physical or mental condition was seriously
impaired or endangered as a result of the inability, refusal,
or neglect of the parents to supply them with the necessary
food, clothing, shelter, medical care, education, or
A.V. was hospitalized from June 17-24, 2013. During this
second hospital stay, multiple physicians saw A.V. and
removed her from several medications and medical
interventions. See Appellee's App. Vol. II pp.
94-97 (discharge notes). For example, A.V.'s urinary
catheter was removed and she was weaned off the medicines
Valium and Topamax. The children were returned to the care of
their parents on July 10, approximately three weeks after
they were removed. DCS voluntarily dismissed the CHINS
petition in October 2013.
Because Stacey worked with children, DCS conducted a Child
Care Worker Assessment Review (CCWAR) regarding the
allegations that she neglected M.V. and A.V. See
Appellants' App. Vol. II p. 65; see also 465
Ind. Admin. Code 3-2-2. DCS substantiated these allegations.
Following a weeklong hearing in January 2014, an
administrative law judge (ALJ) substantiated the allegations
of neglect as to A.V. only. However, a trial court reversed
the ALJ's finding of neglect as to A.V. in December
2014. See Appellants' App. Vol. II
In June 2015, the VanWinkles, individually and on behalf of
M.V. and A.V., filed a proposed complaint for medical
malpractice against Dr. Demetris with the Indiana Department
of Insurance. The complaint alleges as follows:
5. On or about June 10, 2013, AV was admitted to St.
Vincent's by her parents due to gastrointestinal (GI)
concerns. After admission, AV was evaluated for medical child
abuse by Dr. Demetris.
6. Based upon her observations of AV in a clinical setting
and the review of some medical records, Dr. Demetris
diagnosed AV as a victim of medical child abuse, identifying