Judge Rules In Indiana Clinic Cases

By Walter F. Roche Jr.

An Indiana judge has issued a ruling in a series of civil cases stemming from the 2012 fungal meningitis outbreak, but for dozens of victims the long wait for a resolution simply winds on.
In a seven-page ruling issued last week, an Elkhart County Superior Court Judge ruled that she has the power to determine whether to grant a motion filed in behalf of the victims seeking partial summary judgment against the Elkhart clinic where many of the victims were injected with highly contaminated drugs.
Judge Kristine A. Osterday concluded that the alternative would lead to disparate and conflicting decisions in individual victims cases by a series of medical review panels. "The court concludes that the legislature's intent was that the trial court would decide these issues," the ruling states.
Jack Pavlekovich, one of the Indiana victims, said that despite the long delays, he has been encouraged by recent reports from his attorney. He said he is now hopeful for a positive result.
Her order gives the attorneys for the plaintiff victims and the clinic 45 days to file briefs in support of their opposing positions.
The new ruling reverses a July 23, 2019 decision by Osterday in which she concluded she did not have the power to resolve the issues.
As the ruling notes some of those medical review panels have gone in differing directions on how to handle the individual victims' claims.
Osterday's ruling comes in suits brought in behalf of patients who were injected with fungi-laced steroids at the Orthopedicic and Sports Medicine Center in Elkhart. Similar issues have arisen in a parallel case involving patients at a South Bend clinic is facing the same issues.
At issue is whether the panels should be advised of state and federal laws governing the compounding of drugs and properly prescribing them with a patient specific prescription.
The clinic opposes disclosure of the relevant state and federal statutes while the lawyers for the victims contend the panel chairman are required to inform the panel members of the statutory provisions.
Osterday noted in her ruling that a key issue in the pending cases will be whether or not actions by the clinic in any violation of state and federal law actually caused the illnesses and deaths.
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