Crone, J.
Case Summary
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.
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 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.
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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….
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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 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).
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)…
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 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.”).
Affirmed in part, reversed in part, and remanded.
Robb, J., and Kenworthy, J., concur.