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Indiana Supreme Court justices have granted transfer to a medical malpractice case involving a hospital technician’s failure to sterilize surgical equipment.
The case — Linda Gierek, et al. v. Anonymous 1, et al., 23S-CT-277 — involves a patient who had a surgical procedure at an unspecified hospital and, along with more than 1,000 other patients, was later informed that one of the hospital’s technicians didn’t complete the sterilization process for surgical instruments.
The patient, Linda Gierek, and her husband filed a class-action complaint with the Elkhart Superior Court and a proposed class-action complaint with the commissioner of the Indiana Department of Insurance. They asserted claims against the hospital for negligent infliction of emotional distress, negligence and, in the alternative, medical malpractice.
The Giereks also filed motions requesting the certification of two classes: one for the hospital’s patients and another for patients’ spouses.
Additional plaintiffs were permitted to intervene in the action, which was consolidated with a later-filed class-action brought by Cheyanne Bennett, who filed her own motion for class certification.
The Indiana Patient’s Compensation Fund intervened and filed a motion for partial summary judgment, asserting the Indiana Medical Malpractice Act doesn’t apply to the plaintiffs’ claims.
The hospital filed a cross-motion for partial summary judgment, asserting the MMA does apply to the plaintiffs’ claims.
The trial court denied the PCF’s motion for partial summary judgment and granted the hospital’s cross-motion for partial summary judgment. The trial court also denied the plaintiffs’ motions for class certification.
The plaintiffs on appeal argued that the trial court’s rulings were erroneous.
The Court of Appeals of Indiana disagreed in part, finding the trial court didn’t err in concluding the MMA applies to their claims.
A surgical operation is “the very essence” of health care as defined by the MMA, the COA ruled.
But the COA agreed that the trial court erred in its conclusion that it didn’t have subject-matter jurisdiction to grant the motions to certify a class.
Oral arguments haven’t been scheduled in the case, which was the only one granted transfer for the week ending Oct. 13.
Justices denied transfer to 25 other cases, including one that involves four cities alleging streaming services are subject to requirements of the Indiana Video Service Franchises Act.
In Netflix, Inc., et al. v. City of Fishers, Indiana, et al., 22A-PL-1630, the cities filed a complaint alleging streaming services — Netflix Inc., Disney DTC LLC, Hulu LLC, DIRECTV LLC, Dish Network Corp. and Dish Network LLC — provide video service in Indiana.
The Indiana Video Service Franchises Act requires entities that provide video service in Indiana to obtain a franchise authorizing the construction of a video service system. None of the streaming services in the complaint had done that.
The cities that brought the complaint are Indianapolis, Evansville, Valparaiso and Fishers.
The Marion Superior Court denied the streaming services’ motions to dismiss, which in part argued that the court lacked subject-matter jurisdiction.
The streaming services appealed. Shortly before that, though, the state enacted a law that excludes streaming services from the definition of “video service.” The amendment to the act is retroactive to July 1, 2006.
The Court of Appeals affirmed the trial court’s decision, ruling the court has the authority to hear the case.
Justices concurred in all transfer denials except for one: Billy Gene Luke v. State of Indiana, 23A-CR-50.
In that case, a trial court found a man charged with stalking and invasion of privacy forfeited his right to self-representation.
Billy Luke, who was charged in May 2022, filed a motion with the Dearborn Circuit Court to proceed pro se and accused the trial court judge of “uncivilized and unruly behavior” against him in a prior cause. Luke also filed a witness list with 135 people, including President Joe Biden and Gov. Eric Holcomb.
The trial court found Luke forfeited his right to self-representation and appointed him counsel, concluding that his filings included “threatening” language and that it was “clear that his purpose in self-representation is to attack the Court System and all those involved who he can bring into his proposed conspiracy theory.”
The Court of Appeals affirmed that decision.
Indiana Chief Justice Loretta Rush and Justice Geoffrey Slaughter voted to grant transfer to the case.
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