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Gresk v. Demetris

Supreme Court of Indiana

May 10, 2018

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 (Plaintiffs)
Cortney Demetris, M.D., Appellee (Defendant) Stephen W. Robertson, Commissioner of the Indiana Department of Insurance, Party in Interest

          Argued: December 7, 2017

          Appeal from the Marion Superior Court, No. 49D05-1510-MI-35716 The Honorable John M.T. Chavis, II, Judge On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1610-MI-2287

          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

          Chief Justice Rush, Justice David, and Justice Goff concur. Justice Slaughter not participating.


          Massa, Justice

         Public participation is fundamental to self-government, and thus protected by the Indiana and United States Constitutions. When citizens are faced with meritless retaliatory lawsuits designed to chill their constitutional rights of petition or free speech, also known as Strategic Lawsuits Against Public Participation (SLAPP), Indiana's anti-SLAPP statute provides a defense.

         Here, two minors and their parents filed a medical malpractice lawsuit against a doctor who reported suspected medical child abuse to the Department of Child Services (DCS). 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. We reverse, finding the anti-SLAPP statute inapplicable in this case 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).

         Facts and Procedural History

         Stacey VanWinkle, a neonatal-intensive-care-unit nurse, and Derek VanWinkle, a stay-at-home father, have two children, A.V. and M.V. Since birth, A.V. has suffered from several medical conditions, including gastrointestinal (GI) issues, requiring many procedures and medications.

         In May 2013, Dr. Susan Maisel, A.V.'s doctor, became concerned that Stacey was exaggerating A.V.'s GI symptoms. Dr. Maisel recommended admitting A.V. to the hospital for observation. Dr. Maisel then contacted Dr. Cortney Demetris, a board-certified doctor in pediatrics and child-abuse pediatrics, about her concerns that A.V. was a victim of medical child abuse.[1]

         In June 2013, A.V. was admitted for observation, and Dr. Demetris was her attending physician. After two days, Dr. Demetris noted in her medical files that A.V. was "a well appearing child" without "any significant medical complaints." Appellants' App. Vol. 2, p.127. Based on video surveillance from A.V.'s room, conversations with A.V.'s other physicians, and interactions with A.V.'s parents, Dr. Demetris concluded that A.V. suffered from medical child abuse. A hospital social worker then reported Dr. Demetris's diagnosis to DCS.

         Less than a week later, DCS removed A.V. and M.V. from their parents and filed a petition alleging they were children in need of services (CHINS). Ultimately, A.V. and M.V. were returned to their parents. However, because Stacey worked with children, DCS conducted a Child Care Worker Assessment Review (CCWAR).[2] Following the CCWAR, DCS substantiated the allegations of abuse. Eventually, DCS dismissed the CHINS petition, but the VanWinkles sought administrative appeal of the substantiated allegations. After a hearing, an administrative law judge substantiated the neglect allegations as to A.V. only. This finding was ultimately reversed by the trial court.

         The VanWinkles, individually and on behalf of A.V. and M.V., then filed a proposed medical malpractice complaint with the Indiana Department of Insurance, alleging Dr. Demetris's diagnosis of medical child abuse fell below the standard of care.[3] Before the medical review panel could consider the complaint, Dr. Demetris moved for a preliminary determination of law and dismissal, arguing that her report to DCS was protected by Indiana's anti-SLAPP statute.[4] The trial court agreed and dismissed, finding "Dr. Demetris spoke upon a matter of public concern or public interest when she reported her diagnosis of medical child abuse to [DCS]" and therefore her report was protected speech covered under the statute. Appellants' App. Vol. 2, pp.15-16.

         The VanWinkles appealed and our Court of Appeals reversed, concluding the anti-SLAPP statute did not apply. Gresk v. Demetris, 81 N.E.3d 645, 655 (Ind.Ct.App. 2017), vacated. As a matter of first impression, the panel concluded "child-abuse detection and prevention, on a macro level, is of great interest to the general public, " but "the public interest in the more narrow issues addressed by Dr. Demetris's report to DCS . . . is not significant [because it concerned] a private matter." Id. at 654. The panel also found that Dr. Demetris "reported her suspicions of child abuse to DCS primarily because of her duty to report" which is "inconsistent with any claimed intent to engage in public debate or to petition the government." Id.

         We granted Dr. Demetris's petition to transfer, vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).

         Standard ...

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