COA: Doctor’s report to DCS not protected by anti-SLAPP statute

A doctor who reported medical child abuse to the Department of Child Services was not protected by the state’s anti-SLAPP statute, the Indiana Court of Appeals ruled Friday in a case of first impression.

After a lifetime of gastrointestinal and other issues, A.V. was admitted to Peyton Manning Children’s Hospital for observation. Dr. Susan Maisel, who believed A.V.’s mother, Stacey VanWinkle, a neonatal intensive care unit nurse, was exaggerating A.V.’s symptoms, told her colleague Dr. Cortney Demetris she believed A.V. was a victim of medical child abuse, previously called Munchausen Syndrome by proxy.

The results of a GI procedure at the hospital came back normal, but based on her review of covert video surveillance set up in A.V.’s hospital room, Demetris wrote in A.V.’s chart that she and her sibling, M.V., were likely victims of medical child abuse, with VanWinkle as the perpetrator. A hospital social worker then called the Department of Child Services, and the children were removed from their parents’ home.

A.V. was re-admitted to the hospital, and DCS filed a petition alleging both children were children in need of services. However, after A.V. was weaned off of several medications, the children were returned to their parents and the CHINS petition was voluntarily dismissed.

DCS then conducted a child care worker assessment review into VanWinkle and substantiated the allegations she neglected M.V. and A.V. An administrative law judge also substantiated the allegations as they related to A.V., but the Marion Superior Court reversed the finding of neglect as to A.V in December 2014.

The following June, VanWinkle and her husband filed a proposed complaint for medical malpractice against Demetris, alleging the diagnoses of medical child abuse, with VanWinkle as the perpetrator, fell below the reasonable standard of care. The petition also alleged the family had suffered emotional distress as a result of Demetris’ findings and that VanWinkle had lost her job, which was the family’s sole source of income.

Before the complaint went to a medical review panel, Demetris filed a motion to dismiss, arguing that her report to DCS was protected by Indiana’s anti-SLAPP statute and the immunity provision in Indiana’s child-abuse reporting statute. She also argued there was no physician-patient relationship with M.V.

The trial court, ruling only on the Anti-SLAPP claim at the parties’ request, granted Demetris’ motion to dismiss, finding she had spoken on a matter of public concern when she reported the medical child abuse diagnosis. Thus, the court found her speech was protected by the anti-SLAPP statute.

Specifically, Indiana Code 34-7-7-1 provides that an act or omission “in furtherance of” the person’s constitutional rights in connection with a public issue is protected. On appeal, the VanWinkles argued Demetris framed their medical malpractice claim as one against which she could defend herself with the statute, though the complaint does not expressly mention the report to DCS.

But in a Friday opinion, Indiana Court of Appeals Chief Judge Nancy Vaidik said the characterization of the complaint did not matter because Demetris’ report is not protected by the anti-SLAPP law. Specifically, Vaidik – drawing on the cases of Kadambi v. Express Scripts, Inc., 86 F. Supp. 900, 907 (N.D. Ind. 2015) and Brandom v. Coupled Prods., LLC, 975 N.E.2d 382, 386 (Ind. Ct. App. 2012) – wrote that “public interest in the more narrow issues addressed by Dr. Demetris’s report to DCS…is not significant. This is because this was a private matter.”

Further, Demetris’ report was not made “in furtherance of” any free speech or petitioning right, Vaidik said. Thus, she was not entitled to anti-SLAPP protection, so the appellate panel reversed the trial court’s order and remanded the case for consideration of the issues that were stayed: whether Demetris had immunity and whether there was a physician-patient relationship between her and M.V.

The case is Paul Gresk, Trustee for the Bankruptcy Estate of Derek VanWinkle and Stacey VanWinkle on behalf of M.V. and A.V., their minor children, v. Cortney Demetris, M.D., Stephen W. Robertson, Commissioner of the Indiana Department of Revenue, 49A02-1610-MI-2287.