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
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
Justice Rush, Justice David, and Justice Goff concur. Justice
Slaughter not participating.
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.
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).
and Procedural History
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.
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.
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.
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). 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.
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. 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. 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.
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."
granted Dr. Demetris's petition to transfer, vacating the
Court of Appeals opinion. Ind. Appellate Rule 58(A).