Indiana Supreme Court Holds Medical Malpractice Act Applies to Emotional Distress Claims and Trial Courts Have Jurisdiction to Preliminarily Determine Class Certification

We previously blogged on an important Indiana Medical Malpractice case, Abbas v. Neter-Nu, from the Indiana Supreme Court earlier this year. As this year comes to an end, we write on another Indiana Supreme Court medical malpractice decision, which was issued at the start of the year.

In Gierek v. Anonymous 1, Linda Gierek (Gierek) was one of over a thousand patients who received a letter from healthcare providers (collectively referred to as the Hospital) informing them that a technician failed to fully sterilize surgical instruments, which may have exposed them to infectious diseases, including Hepatitis C, Hepatitis B, and HIV. Gierek and her husband filed a class-action complaint for negligent infliction of emotional distress, negligence, and medical malpractice in state court and before the Indiana Department of Insurance (IDOI) and moved for class certification for similarly situated patients and their spouses. The Indiana Patient’s Compensation Fund (the Fund) intervened and moved for partial summary judgment arguing Gierek’s claims sounded in ordinary negligence, not malpractice, and therefore Indiana’s Medical Malpractice Act (MMA) did not apply. While Gierek supported the Fund’s position, the Hospital cross-moved for summary judgment arguing the MMA did apply. The trial court ruled the MMA applied and it denied Gierek’s motion for class certification concluding it lacked subject matter jurisdiction to rule on class certification while the claims were pending before a medical review panel.

The Indiana Supreme Court first determined the MMA applied to Gierek’s claims. While noting the parties generally disputed the MMA’s applicability based upon whether the technician’s conduct constituted ordinary negligence versus medical malpractice, the Court focused instead on whether the MMA applied to Gierek’s claimed injury—emotional harm—as the MMA states, “a patient or the representative of a patient who has a claim under [the Act] for bodily injury or death on account of malpractice may… [f]ile a complaint in any court of law having requisite jurisdiction” and “exercise the right to a trial by jury.” Ind. Code § 34-18-8-1 (italics added). As noted by the Court, the term bodily injury generally means physical damage to a person’s body. 

Nonetheless, relying on the full text of the MMA, “decades of precedent,” legislative history, the overall purpose of the MMA, and the MMA necessarily having to cover potential bodily injury, not just contemporaneous bodily injury, for patients to comply with the MMA’s two-year occurrence-based statute of limitations, the Court concluded the MMA applies to all claims for “malpractice” by a “patient” against a “healthcare provider,” as those terms are defined by the MMA, and not just claims involving bodily injury or death. The Court also concluded that even if the MMA required “bodily injury or death,” Gierek’s emotional-distress claims sufficiently alleged bodily injury. The Court noted Indiana’s modified-impact rule, which allows a claimant to recover damages when the claimant suffers a direct impact by the negligence of another and because of that direct involvement suffers an emotional trauma serious enough to affect a reasonable person, and Indiana’s impact rule, under which “it took little to establish” a “physical injury.” The Court concluded “the Hospital’s alleged tortious conduct here—the use of unsterilized surgical instruments that potentially exposed [Gierek] to infectious diseases—sufficient to constitute a “bodily injury” under the impact rule governing claims for emotional distress.” 

Next, the Court determined the trial court had jurisdiction to preliminarily determine class certification. Under the MMA, trial courts have limited jurisdiction while a claim is pending before a medical review panel. Ind. Code § 34-18-8-7(a)(3). They are expressly prohibited from making a preliminary determination on “any affirmative defense or issue of law or fact reserved for written opinion by the medical review panel,” Ind. Code § 34-18-11-1(b), including whether “[t]he evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint” and whether “[t]he conduct complained of was or was not a factor of the resultant damages,” Ind. Code § 34-18-10-22(b)(1), (4). However, trial courts have authority to, among other things, such as setting a trial date and compelling discovery, “preliminarily determine an affirmative defense or issue of law or fact that may be preliminarily determined under the Indiana Rules of Procedure.” Ind. Code § 34-18-11-1(a)(1).

In concluding class certification is an appropriate preliminary determination under the MMA, the Court first distinguished the “overly narrow approach to preliminary jurisdiction” set forth by the Court in Griffith v. Jones, 602 N.E.2d 107 (Ind. 1992), which limited trial court jurisdiction to preliminary determinations under Trial Rule 12(D). The Court noted prior precedent and the MMA’s reference to “the Indiana Rules of Procedure,” not just Trial Rule 12(D). As stated by the Court, “[t]he Act only prohibits a trial court from issuing a preliminary determination on an ‘affirmative defense or issue of law or fact’ reserved for the panel’s expert opinion—i.e., whether the defendant ‘failed to comply with the appropriate standard of care’ and whether the conduct factored into the ‘resultant damages.’” The Court found a class-certification determination does not dictate the substance of a review panel’s opinion, class certification aligns with the MMA’s overall purpose, and while class certification may tend to potentially chill disclosure by healthcare providers in similar circumstances as a policy consideration, “[a] healthcare provider must warn of a subsequently discovered medical error with potentially harmful consequences.”

Justice Slaughter concurred in the judgment in part and dissented in part with a separate opinion in which Justice Molter joined.  

You can read the full opinion here, Gierek v. Anonymous 1, 250 N.E.3d 378 (Ind. 2025).