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Doctor Facing Med-Mal Lawsuit after Publishing Child Abuse Report

By Jack H. FarnbauchSeptember 7, 2017

After a lifetime of gastrointestinal and other issues, A.V. (the minor in this case) 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, that A.V. was a victim of medical child abuse, previously called Munchausen Syndrome. During A.V.’s stay at the hospital, 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.

Shortly thereafter, VanWinkle regained legal custody. 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 the "standard of care" for the practice of medicine. 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.

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.

The VanWinkles appealed to the Indiana Appeals Court, which heard arguments.  Chief Judge Nancy Vaidik reversed the trial court and held that Demetris’ report is not protected by the anti-SLAPP law because the report was not a matter of public concern. The Court of Appeals remanded the case for consideration of the issues that were not argued, mainly whether Demetris had immunity and whether there was a physician-patient relationship between her and M.V.

You can read a synopsis of the case here