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Ling v. Webb9/30/2005
plaint with the trial court and request a preliminary determination of class certification, at the same time that such complaint is being considered by the medical review panel. Indeed, Indiana Code Section 34-18-11-1 provides:
(a) A court having jurisdiction over the subject matter and the parties to a proposed complaint filed with the commissioner under this article may, upon the filing of a copy of the proposed complaint and a written motion under this chapter, do one (1) or both of the following:
(1) preliminarily determine an affirmative defense or issue of law or fact that may be preliminarily determined under the Indiana Rules of Procedure; or
(2) compel discovery in accordance with the Indiana Rules of Procedure.
(b) The court has no jurisdiction to rule preliminarily upon any affirmative defense or issue of law or fact reserved for written opinion by the medical review panel under IC 34-18-10-22(b)(1), IC 34-18-10-22(b)(2), and IC 34-18-10-22(b)(4).[ ]
(c) The court has jurisdiction to entertain a motion filed under this chapter only during that time after a proposed complaint is filed with the commissioner under this article but before the medical review panel gives the panel's written opinion under IC 34-18-10-22.
(d) The failure of any party to move for a preliminary determination or to compel discovery under this chapter before the medical review panel gives the panel's written opinion under IC 34-18-10-22 does not constitute the waiver of any affirmative defense or issue of law or fact.
Indiana Code Section 34-18-11-2 permits a party, the commissioner, or the chairman of a medical review panel, if any, to invoke the jurisdiction of the court, for the limited purposes enunciated in Section 1, by paying the statutory filing fee to the clerk and filing a copy of the proposed complaint and motion with the clerk. Indiana Code Section 34-18-11-4 provides that, upon the filing of a copy of the proposed complaint and motion with the court, "all further proceedings before the medical review panel shall be stayed automatically until the court has entered a ruling on the motion." Accordingly, there are other procedural avenues to present a class action complaint in the context of a medical malpractice action.
Because the Class Action Tolling Rule is inapplicable to the present dispute, the filing of the Proposed Class Complaint-even if it encompassed Appellees' contentions-did not toll the statute of limitations for Appellees' medical malpractice claims. Accordingly, the trial court's partial denial of Appellants' motion for preliminary determination was erroneous. Instead, inasmuch as Appellees' claims were time barred by the two-year statute of limitations, the trial court should have granted Appellants' motion for preliminary determination, as it related to the Class Action Tolling Rule.
For the foregoing reasons, we reverse the trial court's partial denial of Appellants' motions for preliminary determination and remand for an entry of judgment in favor of Appellants.
Reversed and remanded.
FRIEDLANDER, J., and ROBB, J., concur.
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