IN Supreme Court invites filing of supplemental, amicus curiae briefs in malpractice case

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The Indiana Supreme Court bench. (IL file photo)

The Indiana Supreme Court has invited additional briefing on a medical malpractice case that has already been heard at oral argument.

The high court issued the order Monday in Linda Gierek, et. al. v. Anonymous 1, et. al., 23S-CT277, inviting the filing of supplemental and amicus curiae briefs in the case.

The high court heard oral arguments in the case on Nov. 29, when it asked the parties to address whether any of the appellants’ claims are for a “bodily injury,” as that term is used in the Medical Malpractice Act.

Now, the parties and amici can address that question — and the question of whether the appellants have waived any argument that the MMA does not apply because they have not claimed a bodily injury — in additional briefs.

Those questions come from a case involving Linda Gierek, who was one of more than 1,000 patients who had a surgical procedure at an unspecified hospital and who 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, 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 intervened and filed a motion for partial summary judgment, asserting the MMA doesn’t apply to the plaintiffs’ claims. The hospital filed a cross-motion for partial summary judgment, asserting the MMA does apply.

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.

But 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.

In June, the Court of Appeals of Indiana issued an opinion affirming and reversing in part.

The appellate court found that the trial court didn’t err in concluding the MMA applies to their claims, but did err in its conclusion that it didn’t have subject-matter jurisdiction to grant the motions to certify a class.

The issue was remanded for full consideration of the plaintiffs’ motions for class certification.

According to the high court, opening supplemental briefs must not exceed 4,200 words each, excluding the items listed in Appellate Rule 44(C), and must be filed on or before Jan. 31, 2024.

For amicus briefs, pursuant to Appellate Rule 41, any entity wishing to prepare and file a brief as amicus curiae must file a motion for leave to appear as amicus and tender a proposed brief on or before Jan. 31, 2024. Amicus briefs must not exceed 4,200 words, excluding items listed in Appellate Rule 44(C).

Parties may file a single response brief, not exceeding 4,200 words. Any response briefs must be filed on or before Feb. 14, 2024, and also must comply with Appellate Rules 44(C) and (F).

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