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The Indiana Medical Malpractice Act applies to claims in a consolidated class-action lawsuit concerning a hospital technician’s failure to sterilize surgical equipment, the Court of Appeals of Indiana has ruled in partially affirming a lower court’s decision. The COA also reversed the lower court’s ruling on a jurisdiction issue.
Linda Gierek was one of more than 1,000 patients who had a surgical procedure at an unspecified hospital operated by Anonymous 1, Anonymous 2 and Anonymous 3 and were later informed that one of the hospital’s technicians didn’t complete a step in sterilizing surgical instruments.
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 (DOI), asserting 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 (PCF) intervened and filed a motion for partial summary judgment, asserting the Indiana Medical Malpractice Act (MMA) doesn’t apply to the plaintiffs’ claims. The plaintiffs filed statements in support of the PCF’s motion.
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, ruling the MMA applies to the plaintiffs’ claims.
The trial court also denied the plaintiffs’ motions for class certification, ruling it did not have subject matter jurisdiction to grant them as a preliminary determination under the MMA.
On appeal, the plaintiffs argued the trial court’s rulings were erroneous.
The Court of Appeals disagreed in part, finding the trial court didn’t err in concluding the MMA applies to their claims. But the COA agreed the trial court erred in its conclusion that it didn’t have subject matter jurisdiction to grant the motions to certify a class.
In determining if the MMA applies to the plaintiffs’ claims, the COA said the issue is whether the hospital’s conduct was malpractice — or whether the conduct was either “health care” or “professional services” that were provided or should have been provided.
The plaintiffs argued the hospital owed them a duty to perform surgical procedures with sterile instruments, that the hospital breached that duty and that the breach proximately caused them to suffer emotional distress.
A surgical operation is “the very essence” of health care as defined by the MMA, the COA ruled.
“Because the alleged torts are based on health care that was provided by the Hospital to Plaintiffs, the MMA clearly applies to Plaintiffs’ claims,” the opinion says. “Plaintiffs’ arguments to the contrary are unconvincing because they rely on either inapplicable premises-liability cases or language that does not appear in the MMA.”
In determining if the trial court had subject matter jurisdiction to grant a motion for class certification as a preliminary determination under the MMA, the COA said the preeminent case outlining the parameters of a trial court’s jurisdiction under Indiana Code Section 34-18-11-1 is Griffith v. Jones, 602 N.E.2d 107 (Ind. 1992).
In that case, the Indiana Supreme Court determined the trial court exceeded its authority to “preliminarily determine the law in this case” for a woman who filed a proposed complaint with the DOI requesting the convening of a medical review panel and alleging a doctor failed to obtain informed consent from a patient who died.
The trial court cited Griffith in concluding it didn’t have jurisdiction, the opinion says.
The plaintiffs argued that Indiana Trial Rule 23, which governs class certification, is related to one of the Rule 12(B) provisions mentioned in Griffith, which may be determined as a preliminary matter pursuant to Trial Rule 12(D).
The COA concluded the issue of whether to certify a proposed class is a matter that may be preliminarily determined by motion per Trial Rule 12(D) and -(B)(7).
The COA cited Griffith in ruling as long as an order granting a motion for class certification doesn’t “instruct the medical review panel concerning … the evidence that it may consider in reaching its opinion, or the form or substance of its opinion,” then it wouldn’t exceed the scope of the trial court’s subject matter jurisdiction under Indiana Code Section 34-18-11-1.
The issue was remanded for full consideration of the plaintiffs’ motions for class certification.
“Because the trial court has not yet addressed the merits of the motions, and because the factual and procedural posture of this case may shift at any moment, we refrain from offering any guidance on the logistics of shepherding a class action through the review panel process,” the opinion says.
Judge Terry Crone wrote the opinion. Judges Margret Robb and Dana Kenworthy concurred.
The case is Linda Gierek, et al. v. Anonymous 1, et al, 22A-CT-1225.
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