Indiana Appellate Court Rules Claims For Improperly Sterilized Surgical Instruments Are Medical Malpractice Claims

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.

The Indiana Patient’s Compensation Fund (PCF) intervened and filed a motion for partial summary judgment asserting that the Indiana Medical Malpractice 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.

In their interlocutory appeal, the Plaintiffs contended that the trial court’s rulings were erroneous.

The Court of Appeals of Indiana stated in it Opinion dated June 14, 2023: “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 substance of a claim, not its label … 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 cases or language that does not appear in the MMA. Accordingly, we affirm the trial court’s ruling on this issue.”

The Court of Appeals of Indiana further held: “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. 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 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.”

Source Gierek v. Anonymous 1, Anonymous 2, and Anonymous 3, No. 22A-CT-1225.

If you or a loved one were harmed as a result of medical malpractice in Indiana or in another U.S. state, you should promptly find an Indiana medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your malpractice claim for you and represent you or your loved one in a medical malpractice malpractice case, if appropriate.

Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice lawyers in your U.S. state who may assist you.

Turn to us when you don’t know where to turn.