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Justices to decide if med-mal case must be dismissed on free speech grounds

December 8, 2017

The future of a medical malpractice complaint against a doctor who reported suspected child abuse in her patient will be decided by the justices of the Indiana Supreme Court, who must determine whether the doctor’s report was protected by an Indiana free speech statute.

The doctor in question, Dr. Cortney Demetris, diagnosed her patient, A.V., with medical child abuse after treating her for gastrointestinal issues at Peyton Manning Children’s Hospital. Demetris also identified M.V., her patient’s sister, as a likely victim and implicated their mother, Stacey VanWinkle, a nurse, as the perpetrator.

Demetris reported her suspicions to the Department of Child Services, which substantiated allegations of neglect and removed the girls from VanWinkle’s care. The children were eventually returned to their parents, and a trial court reversed the substantiations against VanWinkle.

The girls’ parents then filed a medical malpractice suit against Demetris, which the trial court dismissed under the theory that Demetris’ report to DCS was protected by Anti-SLAPP statutes. The Court of Appeals, however, disagreed and allowed the medical malpractice complaint to continue.

During oral arguments before the Supreme Court Thursday in Paul Gresk, et al. v. Demetris, M.D., 49S02-1711-MI-00686, Courtney David Mills, counsel for Demetris, echoed the trial court’s rationale. That is, under Indiana Code section 34-7-7-1(a), any acts “in furtherance of” the right to petition or free speech made in connection with a public issue are protected.

In this context, Demetris was exercising her right to petition the government to help her with a matter of public concern, child abuse, when she filed the DCS report, Mills said. Thus, the medical malpractice complaint cannot continue because Demetris’ report is protected.

But Ronald Waicukauski, VanWinkle’s counsel, said his client’s complaint is not based Demetris’ DCS report, but instead on her medical negligence. Specifically, Waicukauski argued the diagnosis of medical child abuse was erroneous and led to the revocation of medically necessary treatments for A.V.’s condition. Those facts do not implicate Anti-SLAPP protections in any way, he said.

Justice Mark Massa grappled with the question of how the facts of the case could fit into the requirements for Anti-SLAPP protection, with Waicukauski saying the facts cannot fit at all. Demetris’ decision to report the suspected child abuse was not an exercise of free speech, but rather was a mandated action required under Indiana law, the attorney said. Further, the report concerned a private matter relating to a single family, not a larger public interest, he said.

Mills, however, said Demetris’s report was the equivalent of a petition to ask the government to help her protect a patient. He supported that argument by pointing to the fact that Demetris had multiple conversations with DCS about A.V.’s case and recommended that she be returned to the hospital for additional diagnostic testing.

Both Chief Justice Loretta Rush and Justice Steve David expressed concerns about the implications of ruling in Demetris’ favor, with David noting the Anti-SLAPP statute was meant to prevent only cases challenging free speech or petitioning rights from moving forward. But when asked if a ruling for Demetris would be an expansion of that purpose, Mills said no, because Anti-SLAPP cases are fact-specific.

Mills also characterized the medical malpractice claim against Demetris as meritless, but Waicukauski disagreed and said that the deprivation of medically necessary treatment to A.V. after Demetris’ report made gave the medical malpractice allegations legitimacy.

Justice Geoffrey Slaughter did not participate in the oral argument, which can be watched in entirety here.

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