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. , 81 N.E.3d 645 ( 2017 )

FILED
Jul 21 2017, 6:24 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Ronald J. Waicukauski Bryce H. Bennett, Jr.
Price Waicukauski Joven & Catlin, LLC Laura S. Reed
Indianapolis, Indiana Laura K. Binford
Courtney David Mills
William W. Gooden Riley Bennett Egloff LLP
Maggie L. Sadler Indianapolis, Indiana
Clark Quinn Moses Scott & Grahn, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Paul Gresk, Trustee for the July 21, 2017
Bankruptcy Estate of Derek Court of Appeals Case No.
VanWinkle and Stacey 49A02-1610-MI-2287
VanWinkle on behalf of M.V. Appeal from the Marion Superior
and A.V., their minor children, Court
Appellants-Respondents, The Honorable John M.T. Chavis,
II, Judge
v. Trial Court Cause No.
49D05-1510-MI-35716
Cortney Demetris, M.D.,
Appellee-Petitioner
Stephen W. Robertson,
Commissioner of the Indiana
Department of Revenue,
Party in Interest
Vaidik, Chief Judge.
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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
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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
1
The hospital’s Child Protection Team provides consultations for suspicions of child abuse or neglect. Dr.
Demetris was one of two physicians on the team.
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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.
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[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
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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
2
In a separate proceeding DCS substantiated a finding of neglect as to Derek, which the trial court also
reversed.
3
In April 2016, Paul Gresk, Trustee for the Bankruptcy Estate of Derek and Stacey VanWinkle, was
substituted as the real party in interest as to the claims of Derek and Stacey VanWinkle (but not as to the
separate claims of M.V. and A.V.).
4
The VanWinkles also sued Dr. Demetris and several DCS officials in federal district court, alleging civil-
rights violations pursuant to 28 U.S.C. § 1983. Dr. Demetris filed a motion to dismiss, which the district
court granted in December 2015. Specifically, the district court found that “the absolute privileges of judicial
and witness immunity protect Dr. Demetris from liability stemming from her report regarding AV, her
participation in the administrative process (including her testimony in front of the ALJs), and her
participation in the state court proceedings.” Appellants’ App. Vol. III p. 98. The claims against the DCS
defendants remain pending. See VanWinkle et al. v. Nichols et al., 1:15-cv-01082-JMS-MJD (S.D. Ind.).
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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
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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 court, deciding this case solely on grounds of the anti-SLAPP
statute, entered an order granting Dr. Demetris’s motion. Specifically, the court
concluded that Dr. Demetris “spoke upon a matter of public concern or public
interest when she reported her diagnosis of medical child abuse to the
Department of Child Services.” Id. at 15-16. Accordingly, it concluded that
5
Section 31-33-6-1 provides that a person who makes or causes to be made a report of child abuse or neglect
“is immune from any civil or criminal liability that might otherwise be imposed because of such actions.”
Failure to make a report is a Class B misdemeanor. See Ind. Code § 31-33-22-1; see also Smith v. State, 8
N.E.3d 668, 677 (Ind. 2014) (explaining that the legislature’s intent in enacting the reporting statutes was “to
encourage effective reporting of potential child abuse or neglect, to facilitate quick investigation of allegations
by the proper authorities, and to protect the victims”), reh’g denied.
6
Dr. Demetris later argued in her motion to stay that the VanWinkles’ claim was “barred by the quasi-
judicial immunity doctrine as decided by Hon. Jane Magnus-Stinson.” Appellants’ Supp. App. p. 4 n.2. She
also argued that the VanWinkles were “prohibited from a collateral attack on Hon. Jane Magnus-Stinson’s
Order pursuant . . . to the Doctrine of Issue Preclusion.” Id.
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Dr. Demetris’s speech was protected by the anti-SLAPP statute. The trial court
also found that Dr. Demetris’s report was “inextricably linked” with A.V.’s
second hospitalization and therefore the anti-SLAPP statute applied to this
hospitalization as well. Id. at 21.
[12] The VanWinkles now appeal the trial court’s anti-SLAPP ruling.7 The trial
court stayed Dr. Demetris’s request for attorney’s fees pursuant to the anti-
SLAPP statute pending resolution of this appeal. Id. at 9.
Discussion and Decision
[13] “SLAPP” is an acronym for Strategic Lawsuit Against Public Participation.
Anti-SLAPP statutes are a “reasonably new phenomemon”—Indiana’s was
adopted in 1998—and are designed to “reduce the number of lawsuits brought
primarily to chill the valid exercise of the constitutional rights of freedom of
speech and petition for the redress of grievances.” Poulard v. Lauth, 793 N.E.2d
1120, 1122 n.2 (Ind. Ct. App. 2003); Kadambi v. Express Scripts, Inc., 86 F. Supp.
3d 900, 907 (N.D. Ind. 2015).
[14] Indiana’s anti-SLAPP statute applies to an act in furtherance of a person’s right
of petition or free speech under the federal and state constitutions “in
7
In May 2017, we ordered the parties to submit supplemental briefing on the issue of whether Dr.
Demetris was immune under our child-abuse reporting statute, noting the principle of law that we can
affirm a dismissal on any basis supported by the record. See Gresk v. Demetris, No. 49A02-1610-MI-
2287 (Ind. Ct. App. May 19, 2017). Having reviewed that briefing, we have decided to address only
the trial court’s anti-SLAPP ruling.
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connection with a public issue or an issue of public interest.” Ind. Code § 34-7-
7-1. The statute specifically provides:
It is a defense in a civil action against a person that the act or
omission complained of is:
(1) an act[8] or omission of that person in furtherance of the
person’s right of petition or free speech under the Constitution of
the United States or the Constitution of the State of Indiana in
connection with a public issue; and
(2) an act or omission taken in good faith and with a reasonable
basis in law and fact.
Ind. Code § 34-7-7-5. Our anti-SLAPP statute has generally been invoked in
defamation cases. See 401 Pub. Safety v. Ray, No. 49A02-1609-PL-2132 (Ind. Ct.
App. July 5, 2017); Brandom v. Coupled Prods., LLC, 975 N.E.2d 382, 386 (Ind.
Ct. App. 2012); Nexus Grp., Inc. v. Heritage Appraisal Serv., 942 N.E.2d 119 (Ind.
Ct. App. 2011); Hamilton v. Prewett, 860 N.E.2d 1234 (Ind. Ct. App. 2007),
trans. denied; Shepard v. Schurz Commc’ns, Inc., 847 N.E.2d 219 (Ind. Ct. App.
2006); Poulard, 793 N.E.2d at 1120. This is likely because suits that qualify for
anti-SLAPP protection are those that are attempts by a plaintiff to silence a
defendant’s speech on a public issue or an issue of public interest. See Hamilton,
860 N.E.2d at 1248 (“Hamilton’s suit against Prewett . . . is not the type of
8
“Act” is defined as “any conduct in furtherance of the exercise of the constitutional right of: (1) petition; or
(2) free speech; in connection with a public issue or an issue of public interest.” Ind. Code § 34-7-7-2.
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lawsuit that the anti-SLAPP statute was enacted to prevent. Unlike the
plaintiffs in the previous Indiana anti-SLAPP cases, Hamilton did not file his
suit to stifle Prewett’s speech on a public issue or an issue of public interest.”).
[15] If a defendant files a motion to dismiss a lawsuit pursuant to the anti-SLAPP
statute, the defendant must state with specificity the public issue or issue of
public interest that prompted the act in furtherance of the person’s right of
petition or free speech under the federal or state constitution. Ind. Code § 34-7-
7-9(b). The trial court shall: (1) treat the motion as a motion for summary
judgment; (2) establish a reasonable time period, not to exceed 180 days, to
expedite and rule on the motion; and (3) specify time limits for the discovery of
evidence to respond to material issues raised in the motion.9 I.C. § 34-7-7-9(a);
see also Shepard, 847 N.E.2d at 224 (explaining that the Trial Rule 56(C)
summary-judgment standard applies to motions to dismiss filed pursuant to the
anti-SLAPP statute). A prevailing defendant on a motion to dismiss is entitled
to recover reasonable attorney’s fees and costs. Ind. Code § 34-7-7-7. However,
if a court finds that a motion to dismiss is frivolous or solely intended to cause
unnecessary delay, the plaintiff is entitled to recover reasonable attorney’s fees
and costs to answer the motion. Ind. Code § 34-7-7-8.
9
Discovery not relevant to the motion to dismiss is stayed upon the filing of the motion. See Ind. Code § 34-
7-7-6 (“All discovery proceedings in the action are stayed upon the filing of a motion to dismiss made under
this chapter, except for discovery relevant to the motion.”)
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[16] In her motion to dismiss, Dr. Demetris stated with specificity the following
public issue or issue of public interest that prompted the act in furtherance of
her right of “free speech” under the United States and Indiana Constitutions:
“the act at issue is Dr. Demetris reporting her suspicions that her patient, A.V.,
was the victim of medical child abuse.” Appellants’ App. Vol. II p. 33
(emphasis removed). The VanWinkles first argue that Dr. Demetris has
“reframe[d]” their medical-malpractice claim into one that is based on the act of
reporting medical child abuse to DCS, noting that their medical-malpractice
complaint does not expressly mention Dr. Demetris’s report to DCS.
Appellants’ Br. p. 20. Rather, they claim that their medical-malpractice
complaint is based on Dr. Demetris’s medical decisions—“her diagnosis, her
decision to hospitalize AV for seven days, and her medical treatment of AV
during those seven days.” Id. We find that the precise characterization of the
complaint does not matter. Because even if the VanWinkles’ complaint is
ultimately based on Dr. Demetris’s report to DCS, the anti-SLAPP statute does
not apply to it.
[17] Both sides agree that whether Dr. Demetris’s report of medical child abuse to
DCS was taken in furtherance of her right of petition or free speech under the
federal and state constitutions in connection with a public issue or an issue of
public interest is an issue of first impression in Indiana. “Speech is a matter of
public concern within the context of the Anti-SLAPP statute ‘if it is addressed
to any matter of political, social, or other concern to the community,’ as
determined by its content, form, and context.’” 401 Pub. Safety, No. 49A02-
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1609-PL-2132, slip op. at 7 (quoting Brandom, 975 N.E.2d at 386). Because we
have not addressed “at length” when speech is about a matter of public concern
in the anti-SLAPP context, the Brandom Court found a California court’s
analysis of this issue to be instructive:
[There are] three non-exclusive and sometimes overlapping
categories of statements that have been given anti-SLAPP
protection. The first category comprises cases where the
statement or activity precipitating the underlying cause of action
[concerned] “a person or entity in the public eye.” The second
category comprises cases where the statement or activity
precipitating the underlying cause of action “involved conduct
that could [directly] affect [a] large number[] of people beyond
the direct participants.” And the third category comprises cases
where the statement or activity precipitating the claim involved
“a topic of widespread, public interest.” Courts have adopted
these categories as a useful framework for analyzing whether a
statement implicates an issue of public interest and thus qualifies
for anti-SLAPP protection.
975 N.E.2d at 387 (quoting Cross v. Cooper, 127 Cal. Rptr. 3d 903 (Cal. Ct. App.
2011) (citing Rivero v. Am. Fed’n of State, Cty., & Mun. Emps., AFL-CIO, 130 Cal.
Rptr. 2d 81 (Cal. Ct. App. 2003)).
[18] Applying that framework here, we find that the first two categories do not
apply. The hospital social worker called DCS to report Dr. Demetris’s
diagnosis of medical child abuse of A.V. The VanWinkle family was not in the
public eye. In addition, the report to DCS did not directly affect people beyond
the direct participants; it was a private matter. The only category that could
possibly apply is the third category, which comprises cases where the statement
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or activity precipitating the claim involves a topic of widespread, public interest.
But the VanWinkles argue that this category does not apply either. They note
that while child-abuse detection and prevention may be a topic of widespread,
public interest, individual abuse allegations are not because “the underlying
proceedings [a]re confidential as required by law.” Appellants’ Br. p. 25. They
note, for example, that initial calls to the DCS hotline are confidential, DCS
reports are confidential, and most juvenile-court records are confidential. See,
e.g., Ind. Code §§ 31-33-18-5 (“An audio recording of a telephone call to the
child abuse hotline is confidential and may be released only upon a court
order.”); 31-33-18-1 (noting that reports made under Article 31-33, which
governs the reporting and investigation of child abuse and neglect, are
“confidential”); 31-39-1-1, -2 (explaining that most juvenile-court records are
“confidential”); In re Paternity of K.D., 929 N.E.2d 863, 874 (Ind. Ct. App. 2010)
(construing Sections 31-39-1-1 and -2 “to prohibit a party’s disclosure of the
contents of the records listed in Section 31-39-1-1, in any fashion, to the extent
that the party learned the contents of those records in the course of the
proceedings or from the documents themselves. Such a rule is in keeping with
the spirit of the statutes, which prohibit disclosure of juvenile case records . . .
.”); see also Ind. Code § 31-33-26-9 (explaining the confidentiality of child-abuse
and child-neglect reports and the administrative process governing them); Ind.
Admin. Rule 9(G)(1) (noting that cases where court records are declared
confidential by statute or court rule are excluded from public access in their
entirety).
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[19] The VanWinkles also cite as support Kadambi, in which the United States
District Court for the Northern District of Indiana addressed Indiana’s anti-
SLAPP statute and the three categories from Brandom and concluded that the
defendants did not “sufficiently show[] that their actions were in furtherance of
free speech on a public issue or matter of public interest.” 86 F. Supp. 3d at
910.10 In that case, Dr. Kadambi, a physician in Fort Wayne, prescribed human
growth hormone to eight of his patients who later became plaintiffs in this case
(along with Dr. Kadambi). The plaintiffs alleged that the prescriptions were
“independently evaluated and determined to be medically necessary for each
patient” and that the prescriptions were approved by their insurance companies.
Id. at 902. However, starting in 2010, the defendant-pharmacies began refusing
to honor the prescriptions from Dr. Kadambi. The plaintiffs also claimed that
representatives from defendant Accredo made defamatory statements to several
of the plaintiffs regarding Dr. Kadambi.
[20] The defendant-pharmacies moved to dismiss the defamation counts pursuant to
Indiana’s anti-SLAPP statute. They argued that their statements were related
to their offering of pharmaceutical services and that the Indiana legislature had
declared that the occupation of pharmacy was “a matter of public interest.” Id.
at 908. They also argued that the statements were made in one-on-one
conversations with Accredo representatives and were directly related to the
10
Federal-district-court decisions, while not binding, may be persuasive authority on state courts. See Plaza
Grp. Props., LLC v. Spencer Cty. Plan Comm’n, 877 N.E.2d 877, 894 (Ind. Ct. App. 2007).
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fulfillment of their prescriptions. Dr. Kadambi, however, argued that this
interest was too broad and that “[i]f such a broad inference were to succeed
th[e]n there would be almost no limit to what is a matter of public interest.” Id.
[21] The district court agreed with Dr. Kadambi, finding “a logical disconnect
between the proffered public interest and the context, form, and content of the
statements actually at issue in this case.” Id. That is, while the defendant-
pharmacies asserted “a broad public interest in pharmaceutical services,”
the district court found “the actual statements at issue [to be] significantly more
narrow in scope.” Id. at 908-09. The district court noted that the statements
involved “several explanations, each to a single patient, regarding why a single
prescription could not be filled” and that the “conversations took place over the
phone, when prompted by a question from the patient regarding the reason the
prescription would not be disbursed, and were not . . . disseminated any
further.” Id. at 909. Accordingly, the district court held:
While the practice of medicine and pharmacy, on the macro
level, is no doubt of great interest to the general public, the public
interest in the more narrow issues addressed in the statements
made by the Accredo personnel is not significant. Specifically,
defendants offer no evidence that either Dr. Kadambi or the
patients at issue is a person “in the public eye.” Brandom, 975
N.E.2d at 385. Nor is there any evidence that the alleged
conduct by Dr. Kadambi “could affect large numbers of people
beyond the direct participants” or that Dr. Kadambi's
prescription practices or the medical needs of the patients at issue
is “a topic of widespread, public interest.” Id. Without this more
narrow focus on the public interest at issue, the Court believes
that the anti-SLAPP protections would paint with too broad a
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brush, providing immunity to any statement made by
pharmaceutical personnel simply by virtue of the fact that the
industry in which they practice is one of general concern to the
public.
Id. The district court also found that the defendant-pharmacies’ statements
were not made “in furtherance of” any free-speech rights, as required by the
anti-SLAPP statute. Id. The district court noted that the statements were
“admittedly self-motivated on a matter of private concern” in order “to protect
themselves from potential liability under federal law.” Id. The district court
said this was “inconsistent with any claimed intent to engage in public debate.”
Id.
[22] We find the district court’s reasoning persuasive. While child-abuse detection
and prevention, on a macro level, is of great interest to the general public, the
public interest in the more narrow issues addressed by Dr. Demetris’s report to
DCS that she believed A.V. was the victim of medical child abuse is not
significant. This is because this was a private matter. The call to the DCS
hotline was confidential by statute. Any reports generated by DCS in response
to the call were confidential by statute, and any juvenile-court proceedings were
confidential by statute as well. In other words, there generally cannot be
widespread, public interest in individual child-abuse cases because our
confidentiality statutes and rules are designed to limit such interest.
Accordingly, we conclude that Dr. Demetris’s report to DCS was not made in
connection with a public issue or an issue of public interest.
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[23] In addition, we find that Dr. Demetris did not make the statements “in
furtherance of” any free-speech or petitioning rights. Similar to the defendant-
pharmacies in Kadambi, Dr. Demetris reported her suspicions of child abuse to
DCS primarily because of her duty to report imposed by Chapter 31-33-5. See
Appellants’ App. Vol. II p. 103. This is inconsistent with any claimed intent to
engage in public debate or to petition the government.
[24] Nevertheless, Dr. Demetris cites California authority holding that reports of
suspected child abuse are protected by its anti-SLAPP statute. See Siam v.
Kizilbash, 31 Cal. Rptr. 3d 368, 374 (Cal. Ct. App. 2005) (“[The defendant’s
reports of child abuse] were designed to prompt action by law enforcement or
child welfare agencies. Communications that are preparatory to or in
anticipation of commencing official proceedings come within the protection of
the anti-SLAPP statute. Thus, defendant’s reports of child abuse to persons
who are bound by law to investigate the report or to transmit the report to the
authorities are protected by the statute.” (citations omitted)); see also Comstock v.
Aber, 151 Cal. Rptr. 3d 589 (Cal. Ct. App. 2012). However, California’s anti-
SLAPP statute is different than ours. California, in particular, defines “act in
furtherance of a person’s right of petition or free speech under the United States
or California Constitution in connection with a public issue” to include, among
other things, “any written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding authorized
by law.” Cal. Civ. Proc. Code § 425.16(e)(1) (emphasis added). Our statute
does not contain this language, see I.C. § 34-7-7-2, and this is the precise
Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017 Page 18 of 19
language upon which the California courts relied in extending anti-SLAPP
protection to reports of suspected child abuse (and other reports as well, such as
reports of criminal activity to police). Based on this distinction, we do not find
these cases persuasive in interpreting our own anti-SLAPP statute.
Accordingly, Dr. Demetris is not entitled to anti-SLAPP protection with regard
to her report to DCS.11
[25] We therefore reverse the trial court’s grant of summary judgment on the anti-
SLAPP issue in favor of Dr. Demetris and remand this case to the trial court for
consideration of the issues that were stayed—immunity and lack of a physician-
patient relationship between Dr. Demetris and M.V. Although we have
concluded that the anti-SLAPP statute does not apply to Dr. Demetris’s report
to DCS, we express no opinion on the stayed issues.
[26] Reversed and remanded.
Bailey, J., and Robb, J., concur.
11
Because we find that Dr. Demetris’s report to DCS is not protected by the anti-SLAPP statute, we do not
address the trial court’s ruling that because Dr. Demetris’s report was inextricably linked with A.V.’s second
hospitalization, the anti-SLAPP statute applied to this hospitalization as well.
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