Gresk v. Demetris, Court of Appeals Case No. 49A02-1610-MI-2287

• Citation: 81 N.E.3d 645
• Decision Date: 21 July 2017
• Docket Number: Court of Appeals Case No. 49A02-1610-MI-2287
• Parties: 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, v. Cortney DEMETRIS, M.D., Appellee-Petitioner Stephen W. Robertson, Commissioner of the Indiana Department of Revenue, Party in Interest
• Court: Court of Appeals of Indiana

81 N.E.3d 645

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,

v. Cortney DEMETRIS, M.D., Appellee-PetitionerStephen W. Robertson, Commissioner of the Indiana Department of Revenue, Party in Interest

Court of Appeals Case No. 49A02-1610-MI-2287

Court of Appeals of Indiana.

July 21, 2017

Attorneys for Appellants: Donald 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.

Case Summary

[1] 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.

[2] 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.

Facts and Procedural History

[3] 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,¹ 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.

[4] 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 child.

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.

[5] 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 supervision).

[6] 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.

[7] 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 2014.² See Appellants' App. Vol. II pp. 64-88.

[8] In June 2015, the VanWinkles, individually and on behalf of M.V. and A.V.,³ filed a proposed complaint for medical malpractice against Dr. Demetris with the Indiana Department of Insurance.⁴ 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 AV's mother, Stacey, as the perpetrator.

7. Without a medical records review or clinical observation, at some point after June 10, 2013, Dr. Demetris also diagnosed MV as a victim of medical child abuse. Again identifying Stacey as the perpetrator.

8. Dr. Demetris's diagnoses of AV and MV as victims of medical child abuse (and identifying Stacey as the perpetrator) fell below the standard of care of a reasonable physician.

* * * * *

11. As a direct and proximate result of Dr. Demetris's conduct, MV and AV were removed from their home, suffered from a lapse in medically necessary treatment, and suffered emotional damage.

12. As a direct and proximate result of Dr. Demetris's conduct, Stacey and Derek were labeled as the perpetrators of medical child abuse, suffered from the removal of their children from their home, and suffered emotional distress. In addition, as a direct and proximate result of Dr. Demetris's conduct, Stacey lost her job, which was the sole source of income for the family.

Appellants' App. Vol. III pp. 76-78.

[9] In October 2015, before a medical review panel considered the complaint, Dr. Demetris filed a combined motion for preliminary determination of law and motion to dismiss the VanWinkles' proposed complaint in Marion Superior Court. Appellants' App. Vol. II p. 25. Specifically, Dr. Demetris argued that her report to DCS that she suspected A.V. was the victim of medical child abuse was protected by two statutes: (1) Indiana's anti-SLAPP statute, Indiana Code chapter 34-7-7, and (2) the immunity provision contained in Indiana's child-abuse reporting statute, Indiana Code section 31-33-6-1.⁵ Dr. Demetris also argued that because M.V. was not her patient, there was no physician-patient relationship.⁶

[10] In February 2016, Dr. Demetris, in order to "simplify" the issues before the trial court, asked the court to rule on the anti-SLAPP issue only and to stay ruling on the remaining issues of immunity and lack of a physician-patient relationship. Appellants' Supp. App. p. 2; see also id. at 4 ("Simply put, Defendant is asking the Court for a clean and clear ruling on Defendant's Anti-SLAPP Act Motion to Dismiss."). The VanWinkles "joined in the motion for stay of these issues." Id. at 21.

[11] The trial court granted the motion to stay in April 2016. Appellants' App. Vol. II p. 12. The...