                                                                                   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.
Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017                   Page 1 of 19
                                            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


      Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017     Page 2 of 19
      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.

      Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017                        Page 3 of 19
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.




Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017   Page 4 of 19
[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

      Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017   Page 5 of 19
      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.).

      Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017                            Page 6 of 19
              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


      Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017   Page 7 of 19
       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.

       Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017                              Page 8 of 19
       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.

       Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017                       Page 9 of 19
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.

Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017                             Page 10 of 19
       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.”)




       Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017                         Page 11 of 19
[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-


       Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017   Page 12 of 19
       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

       Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017   Page 13 of 19
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).


Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017    Page 14 of 19
[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).

       Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017                         Page 15 of 19
       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

       Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017    Page 16 of 19
               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.



       Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017   Page 17 of 19
[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.

       Court of Appeals of Indiana | Opinion 49A02-1610-MI-2287 | July 21, 2017                         Page 19 of 19
