This Traveling Oral Argument will not be webcast live because it will not take place in the Court of Appeals Courtroom. Video of the event will become available within about one week after the hearing. See Oral Arguments Online for video.

A hospital notified certain patients that a technician had failed to complete a step in sterilizing at least one instrument that had been used in their surgeries, and it offered them free testing for communicable diseases. One of the patients, Linda Gierek, and her husband Stephen filed proposed class action complaints against the hospital with the trial court and the Indiana Department of Insurance, seeking damages for alleged negligence and negligent infliction of emotional distress. The Giereks’ case was consolidated with those of other plaintiffs (“the Plaintiffs”), and the Plaintiffs filed a motion for class certification pursuant to Indiana Trial Rule 23. The Indiana Patient’s Compensation Fund (“the PCF”) was permitted to intervene and filed a motion for summary judgment on its counterclaim for declaratory judgment that the Plaintiffs’ claims are not governed by the Medical Malpractice Act (“the MMA”). The hospital filed a cross-motion for partial summary judgment asserting that the Plaintiffs’ claims are governed by the MMA. After a hearing, the trial court issued an order denying the PCF’s summary judgment motion, granting the hospital’s summary judgment motion, and denying the Plaintiffs’ motion for class certification. The Plaintiffs now bring this interlocutory appeal.

The scheduled panelists ar Judge Robb, Judge Crone, and Judge Kenworthy.