FILED Jun 14 2023, 9:24 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES Eric S. Pavlack James L. Hough Colin E. Flora Alyssa Stamatakos Pavlack Law, LLC Eichhorn & Eichhorn, LLP Indianapolis, Indiana Hammond, Indiana
ATTORNEYS FOR INTERVENOR COMMISSIONER, INDIANA DEPARTMENT OF INSURANCE AS ADMINISTRATOR OF THE INDIANA PATIENT’S COMPENSATION FUND A. Richard M. Blaiklock Wade D. Fulford Michael D. Heavilon Lewis Wagner, LLP Indianapolis, Indiana
ATTORNEYS FOR AMICUS CURIAE INDIANA HOSPITAL ASSOCIATION Angela M. Smith Matthew M. Schappa John D. French Hall Render Killian Heath & Lyman Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 1 of 24 Linda Gierek and Stephen June 14, 2023 Gierek, on behalf of themselves Court of Appeals Case No. and all others similarly situated, 22A-CT-1225 Appellants-Plaintiffs, Interlocutory Appeal from the Elkhart Superior Court and The Honorable Stephen R. Bowers, Judge K.W., G.S., L.P., L.W., S.B., S.J., C.D., S.S., E.M., P.H., Trial Court Cause Nos. 20D02-1911-CT-243 consolidated C.M., A.S., and M.S., with 20D05-2002-CT-25 Intervenors-Plaintiffs,
v.
Anonymous 1, Anonymous 2, and Anonymous 3, Appellees-Defendants,
and
Amy L. Beard, Commissioner of the Indiana Department of Insurance as Administrator of the Indiana Patient’s Compensation Fund, Intervenor-Defendant _____________________________
Amy L. Beard, Commissioner of the Indiana Department of Insurance as Administrator of
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 2 of 24 the Indiana Patient’s Compensation Fund, Counter/Cross-Plaintiff,
Linda Gierek and Stephen Gierek, on behalf of themselves and all others similarly situated, Appellants-Counterdefendants,
K.W., G.S., L.P., L.W., S.B., S.J., C.D., S.S., E.M., P.H., C.M., A.S., and M.S., Counterdefendants,
Anonymous 1, Anonymous 2, and Anonymous 3, Appellees-Cross-claim Defendants
_____________________________
Cheyanne Bennett, individually and on behalf of all others similarly situated, Plaintiffs,
Anonymous Healthcare Provider 1, Anonymous Healthcare Provider 2, Anonymous Healthcare Provider 3, Anonymous Healthcare Provider 4, and John Doe 1,
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 3 of 24 Defendants,
Amy L. Beard, Commissioner of the Indiana Department of Insurance as Administrator of the Indiana Patient’s Compensation Fund, Intervenor-Defendant
Amy L. Beard, Commissioner of the Indiana Department of Insurance as Administrator of the Indiana Patient’s Compensation Fund, Counter/Cross-Plaintiff,
Cheyanne Bennett, individually and on behalf of all others similarly situated, Counterdefendants,
Anonymous Healthcare Provider 1, Anonymous Healthcare Provider 2, Anonymous Healthcare Provider 3, Anonymous Healthcare Provider 4, and John Doe 1, Cross-Defendants
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 4 of 24 Opinion by Judge Crone Judges Robb and Kenworthy concur.
Crone, Judge.
Case Summary [1] Linda Gierek and over a thousand other patients who underwent surgical
procedures at a hospital operated by Anonymous 1, Anonymous 2, and
Anonymous 3 (the Hospital) were informed by the Hospital that one of its
technicians had failed to complete a step in the procedure for sterilizing certain
surgical instruments and that, as a result, the patients may have been exposed to
infectious diseases. Linda and her husband Stephen filed a class-action
complaint with the trial 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
one for the patients’ spouses. Additional plaintiffs were permitted to intervene
in the Giereks’ action, which was consolidated with a later-filed class action
brought by Cheyanne Bennett, who filed her own motion for class certification.
Where appropriate, we refer to the Giereks and Bennett collectively as
Plaintiffs.
[2] The Indiana Patient’s Compensation Fund (PCF) intervened and filed a motion
for partial summary judgment asserting that the Indiana Medical Malpractice
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 5 of 24 Act (MMA) does not apply to Plaintiffs’ claims. Plaintiffs filed statements in
support of the PCF’s motion. The Hospital filed a cross-motion for partial
summary judgment asserting that the MMA does apply to Plaintiffs’ claims.
The trial court entered an order denying the PCF’s motion for partial summary
judgment and granting the Hospital’s cross-motion for partial summary
judgment, ruling that the MMA applies to Plaintiffs’ claims. The court also
denied Plaintiffs’ motions for class certification on the basis that it did not have
subject matter jurisdiction to grant them as a preliminary determination under
the MMA.
[3] In this interlocutory appeal, Plaintiffs contend that the trial court’s rulings are
erroneous. We hold that the trial court did not err in concluding that the MMA
applies to Plaintiffs’ claims. We also hold that the trial court erred in
concluding that it did not have subject matter jurisdiction to grant Plaintiffs’
motions to certify a class as a preliminary determination under the MMA.
Consequently, we affirm in part, reverse in part, and remand for further
proceedings.
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 6 of 24 Facts and Procedural History 1 [4] The relevant facts are undisputed. Linda had surgery at the Hospital in June
2019. In November 2019, the Hospital sent letters to 1,181 of its surgical
patients, including Linda, that read in pertinent part as follows:
We are writing to you today because you had a surgical procedure at [the Hospital] between April and September 2019. During this time, one of our seven surgical instrument sterilization technicians did not complete one step in a multistep sterilization process with certain surgical instruments. The surgical instruments in question were still treated with our usual chemical disinfection and machine sterilization processes which include a wide margin of safety; however, such instruments may or may not have been completely sterile. While we believe the risk is extremely low, out of the utmost caution, we want to notify you that it is possible that this action may have exposed you to infections such as the hepatitis C virus, hepatitis B virus and human immunodeficiency virus (HIV). To be very conservative, we want to offer patients free lab testing services to verify the absence or presence of any of these viruses.
Appellants’ App. Vol. 2 at 131. The surgical instruments at issue contained
straw-like tubes called lumens, which the technician failed to clean out with a
brush as required by step six of the nine-step sterilization process.
1 We held oral argument in the magnificent nineteenth-century St. Joseph Circuit Court courtroom on May 11, 2023. We thank the Honorable John E. Broden and his staff for their assistance and hospitality, and we thank counsel for their capable advocacy. We also extend our appreciation to the St. Joseph County Bar Association for its involvement with the post-argument continuing legal education program.
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 7 of 24 [5] Later that month, Linda filed both a class-action complaint against the Hospital
in the trial court under cause number 20D02-1911-CT-243 (Cause 243) and a
proposed class-action complaint against the Hospital with the DOI
commissioner. She then filed with the trial court a motion requesting
certification of a proposed class composed of patients to whom the Hospital had
sent a similar letter or to whom the Hospital had not sent such a letter but who
underwent surgery or other procedures that involved the use of surgical
instruments between April and September 2019 (Proposed Class 1).
[6] In February 2020, Linda filed a four-count amended class-action complaint,
which added Stephen as both a plaintiff and a representative of a second
proposed class of persons who are or were married to members of Proposed
Class 1 after the latter underwent surgery (Proposed Class 2). Count 1, asserted
on behalf of Proposed Class 1, is captioned as a claim of negligent infliction of
emotional distress. Count 1 alleges that the Hospital had “a professional and
legal duty to perform [surgical] procedures in a safe, sterile, reasonable, and
professional manner” and that the Hospital breached that duty by “using
surgical instruments that may not have been properly sterilized[,]” which
“constituted direct physical impacts” to the plaintiffs. Id. at 158-59. As “a direct
and proximate result” of those breaches, the plaintiffs “were potentially exposed
to innumerable infectious diseases, including potential incurable and fatal
diseases[,]” and they “each suffered extreme and serious emotional distress and
trauma as the result of” the Hospital’s “negligent conduct[.]” Id. at 159.
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 8 of 24 [7] Count 2, asserted on behalf of Proposed Class 1, is captioned as a claim of
negligence based on the Hospital’s use of “surgical instruments that may not
have been properly sterilized.” Id. at 160.
[8] Count 3, which purports to be asserted only on behalf of Proposed Class 1, is
captioned as a medical malpractice claim, pleaded in the alternative to the
negligence claims. Count 3 alleges that the Hospital’s use of “surgical
instruments that were not properly sterilized … failed to meet the applicable
standard of medical care”; that, “[a]s a direct and proximate result of” the
malpractice, members of Proposed Class 1 “suffered and will continue to suffer
extreme emotional distress and will incur medical testing and other expenses”;
and that, as spouses of those members, the members of Proposed Class 2 were
“potentially exposed to the same innumerable infectious diseases” and
“suffered extreme and serious emotional distress and trauma, and have/will
incur medical testing and other expenses as the result of” the Hospital’s
negligent conduct. Id. at 161.
[9] Finally, Count 4, asserted on behalf of Proposed Class 2, is captioned as a
negligence claim and alleges that the Hospital’s aforementioned breaches of its
“professional and legal duty” caused the aforementioned injuries to the
members of Proposed Class 2. Id. at 162.
[10] In March 2020, additional individual plaintiffs were permitted to intervene in
the Giereks’ action. Later that month, pursuant to Indiana Trial Rule 42(D), the
Giereks and the Hospital filed a joint motion to consolidate the Giereks’ action
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 9 of 24 with a later-filed class action brought by Bennett under cause number 20D05-
2002-CT-25. The trial court consolidated the actions under Cause 243, and the
PCF was permitted to intervene.2 In April 2020, the Giereks filed a
supplemental motion requesting certification of Proposed Class 2. Bennett later
filed her own motion for class certification.
[11] In May 2020, the PCF filed a counterclaim and a cross-claim requesting a
judgment declaring that the Giereks’ claims “arise out of ordinary negligence
under common law, and therefore, the MMA does not apply to said claims.”
Appellants’ App. Vol. 3 at 117. The Hospital and the PCF filed a joint motion
to stay class certification proceedings pending a ruling on the MMA issue,
which the trial court granted in August 2020.
[12] In March 2021, the PCF filed a motion for partial summary judgment asserting
that the MMA does not apply to Plaintiffs’ claims. Plaintiffs filed statements in
support of the PCF’s motion. Later that month, the Hospital filed a cross-
motion for partial summary judgment asserting that the MMA does apply to
Plaintiffs’ claims. In April 2022, after a hearing, the trial court entered an order
denying the PCF’s motion and granting the Hospital’s cross-motion, concluding
that the MMA applies to Plaintiffs’ claims. The court also denied Plaintiffs’
motions for class certification on the basis that it did not have subject matter
2 The PCF was created for the purpose of paying, up to statutory limits, amounts in excess of the liability limits established for health care providers under the MMA. Ind. Code §§ 34-18-6-1, 34-18-14-3, 34-18-15-3. The PCF “is financed by the surcharges collected from providers throughout the state” and is administered by the DOI commissioner. Atterholt v. Herbst, 902 N.E.2d 220, 222 (Ind. 2009); Ind. Code § 34-18-6-1.
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 10 of 24 jurisdiction to grant them as a preliminary determination under the MMA. The
Giereks sought and received permission to bring this discretionary interlocutory
appeal of the trial court’s order pursuant to Indiana Appellate Rule 14 and filed
a notice of appeal. Bennett filed a notice of joinder in the Giereks’ appellate
brief. 3 The intervenor plaintiffs in the Giereks’ action filed a notice of non-
participation in this appeal. The PCF does not appeal the trial court’s ruling on
the MMA issue and asks us to affirm the court’s ruling on the class-certification
issue.
Discussion and Decision
Section 1 – The MMA applies to Plaintiffs’ claims. [13] We first consider whether the trial court erred in concluding that the MMA
applies to Plaintiffs’ claims. We stand in the trial court’s shoes and review its
ruling de novo. Doe v. Ind. Dep’t of Ins., 194 N.E.3d 1197, 1199 (Ind. Ct. App.
2022), trans. denied (2023). “Summary judgment is appropriate ‘if the designated
evidentiary matter shows that there is no genuine issue as to any material fact
3 See Ind. Appellate Rule 46(G) (“In cases involving more than one appellant or appellee, including cases consolidated for appeal, each party may file a separate brief, more than one party may join in any single brief, or a party may adopt by reference any part of any brief of any party.”). Bennett did not file her own motions for bringing a discretionary interlocutory appeal or a notice of appeal, nor did she join in the Giereks’ notice of appeal pursuant to Appellate Rule 9(C) (“If two (2) or more persons are entitled to appeal from a single judgment or order, they may proceed jointly by filing a joint Notice of Appeal. The joined parties may, thereafter, proceed on appeal as a single appellant.”). Because the Hospital does not argue that the trial court’s order should be summarily affirmed as to Bennett on this basis, we do not address this matter further. The Giereks have included Bennett’s complaint and other filings in their appellants’ appendix, and the Hospital states that Bennett, as did the Giereks, “alleged medical negligence arising from the failure to properly sterilize instruments and the use of those instruments in her surgery.” Appellees’ Br. at 13. To the extent that Bennett might have alleged different/additional facts and/or legal theories below, it is not our task to raise them on Bennett’s behalf in this appeal.
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 11 of 24 and that the moving party is entitled to judgment as a matter of law.’” Id.
(quoting Ind. Trial Rule 56(C)). “Further, ‘[w]hether a case is one of medical
malpractice as defined by the MMA is a question [of law] for the court,’ making
the issue particularly suited for determination on summary judgment.” Id. (first
alteration in Doe) (quoting Rossner v. Take Care Health Sys., LLC, 172 N.E.3d
1248, 1255 (Ind. Ct. App. 2021), trans. denied).
[14] “Because we review a summary judgment ruling de novo, a trial court’s
findings and conclusions offer insight into the rationale for the court’s judgment
and facilitate appellate review but are not binding on this court.” S&C Fin. Grp.,
LLC v. Khan, 172 N.E.3d 280, 287 (Ind. Ct. App. 2021), trans. denied.
“Additionally, we are not constrained by the claims and arguments presented to
the trial court, and we may affirm a summary judgment ruling on any theory
supported by the designated evidence.” Id. Cross-motions for summary
judgment do not alter our standard of review, as we consider each motion
separately to determine whether the movant is entitled to judgment as a matter
of law. Flannagan v. Lakeview Loan Servicing, LLC, 184 N.E.3d 691, 696 (Ind. Ct.
App. 2022). “[T]he party that lost in the trial court has the burden of persuading
us that the trial court erred.” Solomon v. Lindsey, 163 N.E.3d 302, 307 (Ind. Ct.
App. 2020).
[15] “In interpreting statutes, our primary objective is to ascertain and give effect to
the intent of the legislature. Where the intent is clearly expressed by the
language of the legislation, we may not construe the statute to mean something
other than what it plainly states on its face.” Bova v. Roig, 604 N.E.2d 1, 3 (Ind.
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 12 of 24 Ct. App. 1992) (citation omitted). “When the General Assembly has defined a
statutory term, we are bound by its definition.” WTHR-TV v. Hamilton Se. Schs.,
178 N.E.3d 1187, 1191 (Ind. 2022). We give “undefined ‘words their plain
meaning and consider the structure of the statute as a whole.’” Id. (quoting
ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016)).
“[I]t is just as important to recognize what a statute does not say as it is to
recognize what it does say. A court may not read into a statute that which is not
the expressed intent of the legislature.” Rush v. Elkhart Cnty. Plan Comm’n, 698
N.E.2d 1211, 1215 (Ind. Ct. App. 1998) (citation omitted), trans. denied.
[16] “The MMA, which is applicable to acts of malpractice occurring after June 30,
1975, set up a system under which health care providers meeting qualifications
set forth in the act … would enjoy certain benefits, including a limitation on
liability.” In re Stephens, 867 N.E.2d 148, 150 (Ind. 2007) (citation omitted). The
MMA applies to a patient who has a claim “for bodily injury or death on
account of malpractice[.]” Ind. Code § 34-18-8-1. It is undisputed that Plaintiffs
were “patients” of the Hospital and that the Hospital is a “health care provider”
for purposes of the MMA. See Ind. Code §§ 34-18-2-22 (defining “patient” as
“an individual who receives or should have received health care from a health
care provider, under a contract, express or implied, and includes a person
having a claim of any kind, whether derivative or otherwise, as a result of
alleged malpractice on the part of a health care provider”), 34-18-2-14(1)
(defining “health care provider” in pertinent part as “a limited liability company
[or a] corporation … licensed or legally authorized by this state to provide
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 13 of 24 health care or professional services as a … hospital”). 4 The MMA does not
define “bodily injury,” but whether Plaintiffs suffered bodily injury is not at
issue here. 5
[17] “Malpractice” is “a tort or breach of contract based on health care or
professional services that were provided, or that should have been provided, by
a health care provider, to a patient.” Ind. Code § 34-18-2-18 (emphasis added).
A “tort” is “a legal wrong, breach of duty, or negligent or unlawful act or
omission proximately causing injury or damage to another.” Ind. Code § 34-18-
2-28. “Health care” is “an act or treatment performed or furnished, or that
should have been performed or furnished, by a health care provider for, to, or
on behalf of a patient during the patient’s medical care, treatment, or
confinement.” Ind. Code § 34-18-2-13. The MMA does not define the term
“professional services.”
[18] The Plaintiffs’ complaints allege that the Hospital committed tortious conduct.
The contested issue here is whether that conduct was malpractice, i.e., whether
that conduct was either “health care” or “professional services” that were
provided, or should have been provided, by the Hospital to Plaintiffs. Ind. Code
§ 34-18-2-18. To determine whether the MMA is applicable, courts look to the
4 According to the Giereks’ amended complaint, both Anonymous 1 and Anonymous 2 are Indiana nonprofit corporations, and Anonymous 3 is an Indiana limited liability company. Appellants’ App. Vol. 2 at 144. 5 As the Giereks’ amended complaint suggests, a “physical impact” is required for the plaintiff to recover emotional-distress damages on a negligence-based claim. Cmty. Health Network, Inc. v. McKenzie, 185 N.E.3d 368, 379 (Ind. 2022).
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 14 of 24 substance of a claim, not its label. Robertson v. Anonymous Clinic, 63 N.E.3d 349,
359 (Ind. Ct. App. 2016), trans. denied (2017). As indicated above, the substance
of Plaintiffs’ claims is that the Hospital owed Plaintiffs a duty to perform
surgical procedures with sterile instruments; that the Hospital breached that
duty by performing surgical procedures with instruments that may not have
been properly sterilized, which may have exposed Plaintiffs to infectious
diseases; and that the Hospital’s breach proximately caused them to suffer
emotional distress. Without question, a surgical procedure is the very essence of
“health care” as defined by the MMA: “an act or treatment performed or
furnished … by a health care provider … to … a patient during the patient’s
medical care [or] treatment[.]” Ind. Code § 34-18-2-13. Because the alleged torts
are based on health care that was provided by the Hospital to Plaintiffs, the
MMA clearly applies to Plaintiffs’ claims. Plaintiffs’ arguments to the contrary
are unconvincing because they rely on either inapplicable premises-liability
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 15 of 24 cases or language that does not appear in the MMA. 6 Accordingly, we affirm
the trial court’s ruling on this issue.
Section 2 – A trial court has subject matter jurisdiction to grant a motion for class certification as a preliminary determination under the MMA. [19] We now consider Plaintiffs’ argument that the trial court erred in concluding
that it did not have subject matter jurisdiction to grant a motion for class
certification as a preliminary determination under the MMA. Generally
speaking, “[t]he MMA grants authority over medical malpractice actions first to
a medical review panel, which must render an opinion on a claimant’s
proposed complaint before the claimant can sue a health-care provider in
court.” Cmty. Health Network, Inc. v. McKenzie, 185 N.E.3d 368, 376 (Ind. 2022).
See Ind. Code § 34-18-8-4 (providing that, with certain exceptions not relevant
here, “an action against a health care provider may not be commenced in a
6 See, e.g., Appellants’ Br. at 27 (asserting that MMA does not apply when tortious conduct is “within the understanding of laymen” and that using unsterile surgical instruments is “a textbook example” thereof). The MMA contains no “laymen’s understanding” exception, and our supreme court has observed that “not all medical malpractice cases are so technical that they require expert testimony[.]” Harris v. Raymond, 715 N.E.2d 388, 394 (Ind. 1999); see also Syfu v. Quinn, 826 N.E.2d 699, 705 (Ind. Ct. App. 2005) (citing several medical malpractice cases in which courts “held that expert testimony [was] not required” to establish that defendant’s conduct fell below applicable standard of care). In its order, the trial court correctly observed that [n]early any step in the provision of health care can be broken down far enough that a lay person could perform it. For example, few would argue that if a surgeon amputates the right leg when it is the left leg that should have been removed, the patient’s claim would fall under the [MMA]. If the surgeon delegates to a staff member the task of marking the correct leg for amputation, and the surgeon removes the wrong leg, the patient’s claim would still sound in medical malpractice, even though advanced medical training and skill is not required to know the difference between right and left. Appealed Order at 13.
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 16 of 24 court in Indiana before (1) the claimant’s proposed complaint has been
presented to a medical review panel …; and (2) an opinion is given by the
panel”).
[20] Nonetheless, as happened in this case, “a claimant may commence an action in
court for malpractice at the same time the claimant’s proposed complaint is
being considered by a medical review panel” if the “complaint filed in court
[does] not contain any information that would allow a third party to identify the
defendant[.]” Ind. Code § 34-18-8-7(a). Pursuant to this statute, the “claimant is
prohibited from pursuing the action [and the] court is prohibited from taking
any action except setting a date for trial, an action under IC 34-18-8-8 [the filing
of a Trial Rule 41(E) motion to dismiss by the DOI commissioner], or an action
under IC 34-18-11 [the filing of a motion for preliminary determination]; until
IC 34-18-8-4 has been satisfied.” Id.
[21] As Section 34-18-8-7(a) indicates, the MMA “does give a trial court limited
authority to assert jurisdiction over threshold issues while a proposed complaint
is pending before the medical review panel.” Lorenz v. Anonymous Physician #1,
51 N.E.3d 391, 396 (Ind. Ct. App. 2016). Indiana Code Section 34-18-11-1
provides,
(a) A court having jurisdiction over the subject matter and the parties to a proposed complaint filed with the commissioner under this article may, upon the filing of a copy of the proposed complaint and a written motion under this chapter, do one (1) or both of the following:
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 17 of 24 (1) preliminarily determine an affirmative defense or issue of law or fact that may be preliminarily determined under the Indiana Rules of Procedure; or
(2) compel discovery in accordance with the Indiana Rules of Procedure.
(b) The court has no jurisdiction to rule preliminarily upon any affirmative defense or issue of law or fact reserved for written opinion by the medical review panel under IC 34-18-10-22(b)(1), IC 34-18-10-22(b)(2), and IC 34-18-10-22(b)(4).
(c) The court has jurisdiction to entertain a motion filed under this chapter only during that time after a proposed complaint is filed with the commissioner under this article but before the medical review panel gives the panel’s written opinion under IC 34-18-10-22.
(d) The failure of any party to move for a preliminary determination or to compel discovery under this chapter before the medical review panel gives the panel’s written opinion under IC 34-18-10-22 does not constitute the waiver of any affirmative defense or issue of law or fact.
[22] Indiana Code Section 34-18-10-22(b) states,
(b) After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within thirty (30) days, give one (1) or more of the following expert opinions, which must be in writing and signed by the panelists:
(1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 18 of 24 (2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.
(3) There is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury.
(4) The conduct complained of was or was not a factor of the resultant damages. If so, whether the plaintiff suffered:
(A) any disability and the extent and duration of the disability; and
(B) any permanent impairment and the percentage of the impairment.
[23] The preeminent case outlining the parameters of a trial court’s jurisdiction
under Indiana Code Section 34-18-11-1 (formerly Section 16-9.5-10-1) is Griffith
v. Jones, 602 N.E.2d 107 (Ind. 1992). 7 Patient Jon Jones died after a femoral
angiography performed by Dr. Griffith, and Jon had not been “advised that
there was a risk of death associated with the procedure.” Id. at 108. The
personal representative of Jon’s estate, Carol Jones, filed a proposed complaint
with the DOI requesting the convening of a medical review panel and alleging
“that Dr. Griffith failed to obtain the informed consent of Jon Jones.” Id. at
109. Carol then filed a motion for preliminary determination with the trial court
7 Indiana Code Section 16-9.5-10-1 is substantially similar in all relevant respects to Indiana Code Section 34- 18-11-1, which was enacted in 1998.
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 19 of 24 requesting that it order the medical review panel “to find that there were
material issues of fact not requiring expert opinion bearing on liability for
consideration by the court or jury as regards the issue of informed consent[,]”
construe the term “factor” as used in what is now Indiana Code Section 34-18-
10-22(b)(4), and “enter partial summary judgment in her favor on the issue of
informed consent.” Id. The trial court denied the motion for partial summary
judgment but otherwise granted Carol’s motion for preliminary determination.
[24] On transfer, our supreme court determined sua sponte that “the trial court
exceeded its authority to preliminarily determine the law in this case.” Id. at
110. The court stated,
In view of the fact that the legislature clearly intended for the medical review panel to function in an informal manner in rendering its expert medical opinion, we believe that the legislature did not simultaneously intend to empower trial courts to dictate to the medical review panel concerning either the content of the panel’s opinion or the manner in which the panel arrives at its opinion, or the matters that the panel may consider in arriving at its opinion. In other words, the grant of power to the trial court to preliminarily determine matters is to be narrowly construed.
A narrow construction of this grant of power leads to the conclusion that the legislature specifically limited a trial court’s power on motions for a preliminary determination to two functions, both governed by the Indiana Trial Rules. First, the court can determine either affirmative defenses or issues of law or fact that may be preliminarily determined under the Indiana Trial Rules and, secondly, it may compel discovery in accordance with the Indiana Trial Rules. Therefore, we must turn to the Indiana Trial Rules to further define the courts’ power. Our review of the Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 20 of 24 rules reveals that Trial Rule 8(C) contains a listing of affirmative defenses, Trial Rule 12(B) and (C) sets forth a listing of matters which can be preliminarily determined by motion, and Trial Rules 26 through 37, inclusively, contain the discovery rules. We hold that Ind. Code § 16-9.5-10-1 specifically limits the power of the trial courts of this State to preliminarily determining affirmative defenses under Trial Rules, deciding issues of law or fact that may be preliminarily determined under Trial Rule 12(D), and compelling discovery pursuant to Trial Rules 26 through 37, inclusively.
We further hold that the trial courts of this State do not have jurisdiction to instruct the medical review panel concerning definitions of terms and phrases used in the Medical Malpractice Act, the evidence that it may consider in reaching its opinion, or the form or substance of its opinion. In other words, the medical review panels should be allowed to operate in the informal manner contemplated by the legislature ….
Id. at 110-11.
[25] In the appealed order in this case, the trial court cited Griffith in concluding that
it “[did] not have jurisdiction at this stage of the proceedings to decide whether
to grant … Plaintiffs’ request for class certification.” Appealed Order at 16. And
both the Hospital and the PCF rely primarily on Griffith in arguing that the trial
court properly denied Plaintiffs’ motions for preliminary determination of class
certification, which is governed by Indiana Trial Rule 23. See Ind. Trial Rule
23(A) (“One or more members of a class may sue or be sued as representative
parties on behalf of all only if: (1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions of law or fact common to the
class; (3) the claims or defenses of the representative parties are typical of the
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 21 of 24 claims or defenses of the class; and (4) the representative parties will fairly and
adequately protect the interests of the class.”), -(B) (listing other criteria for
maintenance of class action).
[26] Plaintiffs point out, however, that “Rule 23 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). Appellants’ Br. at 54. See Ind. Trial Rule
12(D) (“Whether made in a pleading or by motion, the defenses specifically
enumerated (1) to (8) in subdivision (B) of this rule … shall, upon application of
any party or by order of court, be determined before trial unless substantial
justice requires the court to defer hearing until trial.”); Ind. Trial Rule 12(B)
(“Every defense, in law or fact, to a claim for relief in any pleading … shall be
asserted in the responsive pleading thereto if one is required; except that … the
following defenses may be made by motion: … (7) Failure to join a party
needed for just adjudication under Rule 19”); Ind. Trial Rule 19(D) (“This rule
is subject to the provisions of Rule 23.”). In short, “Rule 12(B)(7) directly
incorporates Rule 19[,]” which in turn directly incorporates Rule 23. 8
Appellants’ Br. at 54. Moreover, Plaintiffs observe that a class action is a
8 Trial Rule 19(D) is entitled “Exception of Class Actions,” and the Hospital argues that this phrase “excludes class actions from the purview of this rule.” Appellees’ Br. at 44. In response, Plaintiffs note that courts interpreting the Federal Rules of Civil Procedure, on which Indiana’s Rules of Trial Procedure are based, have held that the two rules should be harmonized such that the joinder provisions of Rule 19 do not conflict with the class-action provisions of Rule 23, such as by “deferr[ing] ruling on joinder issues pending a decision on class certification.” Bartle v. TD Ameritrade Holdings Corp., No. 20-cv-00166, 2020 WL 9211182, at *2 (W.D. Mo. Aug. 7, 2020); see Davis ex rel. Davis v. Ford Motor Co., 747 N.E.2d 1146, 1149 n.1 (Ind. Ct. App. 2001) (recognizing that “federal rules and case law are helpful in interpreting Indiana Trial Rules”), trans. denied.
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 22 of 24 “species” of “traditional joinder” that “merely enables” a court “to adjudicate
claims of multiple parties at once, instead of in separate suits. And like
traditional joinder, it leaves the parties’ legal rights and duties intact and the
rules of decision unchanged.” Shady Grove Orthopedic Assocs. v. Allstate Ins. Co.,
559 U.S. 393, 408 (2010). Finally, we note that Trial Rule 23(C) specifically
states that the determination of whether an action is to be maintained as a class
action should be made “[a]s soon as practicable after the commencement of”
the action.
[27] Based on the foregoing, we conclude that 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). As long as an order granting a motion for class
certification does not “instruct the medical review panel concerning … the
evidence that it may consider in reaching its opinion, or the form or substance
of its opinion[,]” Griffith, 602 N.E.2d at 111, it would not exceed the scope of
the trial court’s subject matter jurisdiction under Indiana Code Section 34-18-
11-1. 9 Accordingly, we reverse the trial court’s ruling on this issue and remand
for a full consideration of Plaintiffs’ motions for class certification. Because the
trial court has not yet addressed the merits of the motions, and because the
9 In Ling v. Webb, 834 N.E.2d 1137, 1144 (Ind. Ct. App. 2005), another panel of this Court, in addressing a statute-of-limitations issue, stated that “plaintiffs … who wish to proceed in a medical malpractice class action may file the proposed complaint with the trial court and request a preliminary determination of class certification, at the same time that such complaint is being considered by the medical review panel.” Plaintiffs latch onto this statement and urge us to follow Ling. We decline to do so because of the different procedural posture and case analysis in Ling.
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 23 of 24 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. See Harris v. Jones, 143 N.E.3d 1012, 1018 n.4
(Ind. Ct. App. 2020) (“A cardinal principle of the judicial function is that courts
should not issue advisory opinions but instead should decide cases only on the
specific facts of the particular case and not on hypothetical situations.”).
[28] Affirmed in part, reversed in part, and remanded.
Robb, J., and Kenworthy, J., concur.
Court of Appeals of Indiana | Opinion 22A-CT-1225 | June 14, 2023 Page 24 of 24