Rita Horn and Charles Horn v. Cesar Antonio Jara, M.D. and Northwest Indiana Cardiovascular Physicians, P.C. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 20 2016, 8:31 am

regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEES
Theodore L. Stacy Carly A. Brandenburg
Valparaiso, Indiana Alyssa Stamatakos
Eichhorn & Eichhorn, LLP
Hammond, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Rita Horn and Charles Horn, September 20, 2016
Appellants-Plaintiffs, Court of Appeals Case No.
64A03-1512-CT-2251
v. Appeal from the
Porter Superior Court
Cesar Antonio Jara, M.D. and The Honorable
Northwest Indiana Mary R. Harper, Judge
Cardiovascular Physicians, P.C., Trial Court Cause No.
Appellees-Defendants. 64D05-0801-CT-866

Kirsch, Judge.

[1] Following a jury trial, Rita Horn (“Rita”) and Charles Horn (together, “the

Horns”) appeal the trial court’s order excluding certain expert testimony and

evidence in their medical malpractice action against Cesar Antonio Jara, M.D.
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 (“Dr. Jara”) and Northwest Indiana Cardiovascular Physicians, P.C. (“NICP”)

(collectively, “the Defendants”). The Horns raise several issues, of which we

find the following dispositive: whether the trial court abused its discretion

when it excluded the Horns’ expert testimony and evidence, regarding whether

Dr. Jara breached the standard of care because the procedure performed was

not indicated, when the Horns failed to present that claim to the medical review

panel.

[2] We affirm.

Facts and Procedural History
[3] In July 2006, Rita went to her family doctor, complaining of chest pains and

other symptoms. Rita had a history of coronary artery disease. Her family

doctor admitted her to the hospital and consulted with Dr. Jara, an

interventional cardiologist, regarding Rita’s care. Dr. Jara was familiar with

Rita as he had placed a stent in one of her coronary arteries in December 2005

to clear a blockage and had remained her physician in the months following the

stent procedure. On July 8, 2006, Dr. Jara performed a coronary angiogram on

Rita to attempt to diagnose a potential cardiac problem. During the procedure,

the complication of internal bleeding occurred. Dr. Jara noticed the bleeding

and notified a vascular surgeon to assist in stopping the bleeding. Rita

recovered, but complained of continuing pain and difficulties stemming from

the complication.

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[4] In January 2008, the Horns filed a proposed complaint with the Indiana

Department of Insurance, alleging negligence against Dr. Jara and NICP

related to the care provided on July 8, 2006, specifically the coronary

angiogram. The Horns submitted evidence to the medical review panel, which

included a written panel submission (“the Submission”) and certain medical

evidence. The Horns did not, however, send the medical review panel a copy

of their proposed complaint. The Submission made a res ipsa loquitor argument

that the Defendants failed to adhere to the standard of care and to properly

perform the coronary angiogram, and that, if the procedure had been performed

correctly, no complications would have occurred. Appellants’ App. at 54-58.

The Horns’ contentions in the Submission specifically stated that the

Defendants “breached the appropriate standard of care by failing to perform the

catheterization and angiogram in a reasonably, careful and prudent manner.”

Id. at 58. The medical review panel rendered its opinion, finding that the

evidence did not support a conclusion that the Defendants failed to meet the

applicable standard of care.

[5] On June 9, 2010, the Horns filed a complaint with the Porter Superior Court,

alleging negligence against the Defendants. They later identified Dr. Stephen

Joyce (“Dr. Joyce”), a cardiovascular surgeon, as an expert witness who opined

that Dr. Jara breached the appropriate standard of care in performing the

coronary angiogram on July 8, 2006. Tr. at 316, 317. Dr. Joyce also stated he

believed that the procedure should not have been performed because there was

nothing to indicate or warrant the procedure. Appellants’ App. at 86. Dr. Joyce

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 asserted that this was because a stress test administered by Dr. Jara in the spring

of 2006 had normal results. Id.

[6] The Defendants filed a motion to bar and a motion in limine, both of which

sought to exclude any testimony regarding the Horns’ allegation of negligence

associated with whether the angiogram procedure was indicated. On April 17,

2014, the trial court issued an order granting the Defendants’ motions, barring

the Horns from introducing any evidence at trial that had not been presented to

the medical review panel, and limiting the Horns to only arguing the issue

presented to the medical review panel, which was “that Dr. Jara breached the

appropriate standard of care by failing to perform the catheterization and

angiogram procedure itself in a reasonably careful and prudent manner.” Id. at

16. The Horns moved to certify the court’s order for interlocutory appeal,

which was granted by the trial court; however, this court denied the Horns’

petition for interlocutory appeal.

[7] A jury trial was held, and prior to trial, the Horns raised the issue of the

excluded testimony for the purpose of attempting to preserve the issue for

appeal. The trial court maintained its ruling to exclude the evidence. At the

conclusion of the trial, the jury returned a verdict in favor of the Defendants.

The Horns now appeal.

Discussion and Decision
[8] We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Morse v. Davis, 965 N.E.2d 148, 155 (Ind. Ct. App. 2012), trans.

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 denied. This standard also applies to a trial court’s decision to admit or exclude

expert testimony. Id. We will reverse a trial court’s decision to admit or

exclude evidence only if that decision is clearly against the logic and effect of

the facts and circumstances before the court or the reasonable, probable, and

actual deductions to be drawn therefrom. Id. Even if the trial court errs in its

ruling on the admissibility of evidence, this Court will reverse only if the error is

inconsistent with substantial justice. Weinberger v. Gill, 983 N.E.2d 1158, 1163

(Ind. Ct. App. 2013).

[9] The Horns argue that the trial court abused its discretion when it excluded

certain portions of Dr. Joyce’s testimony and other evidence that Dr. Jara

breached the standard of care in performing the angiogram procedure because it

was not presented to the medical review panel. The Horns contend that

evidence of such a breach of the standard of care was presented to the medical

review panel because the decision to perform the procedure cannot be separated

from the procedure itself when considering the standard of care. Therefore,

because they presented evidence that Dr. Jara breached the standard of care by

failing to perform the procedure in a reasonably careful and prudent manner,

they also presented evidence that he did so by failing to properly diagnose Rita.

The Horns also claim that their contention that Dr. Jara breached the standard

of care was presented to the medical review panel through their proposed

complaint and through evidence they submitted.

[10] Indiana’s Medical Malpractice Act (“the MMA”) is a procedural mechanism

for claims of medical malpractice. Ind. Patient’s Comp. Fund v. Patrick, 929

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 N.E.2d 190, 193-94 (Ind. 2010). The MMA requires that before a malpractice

claim is pursued in court, it must be presented to a medical review panel in a

proposed complaint. Ind. Code § 34-18-8-4. After the proposed complaint is

filed and the panel selected, “[t]he evidence in written form to be considered by

the medical review panel shall be promptly submitted by the respective parties.”

Ind. Code § 34-18-10-17(a). The panel “may consult with medical authorities”

and “may examine reports of other health care providers necessary to fully

inform the panel regarding the issue to be decided,” Ind. Code § 34-18-10-21,

but must render its decision “based upon the evidence submitted by the

parties.” Ind. Code § 34-18-10-17(e). The panel is directed to issue an expert

opinion “as to whether or not the evidence supports the conclusion that the

defendant or defendants acted or failed to act within the appropriate standards

of care as charged in the complaint.” Ind. Code § 34-18-10-22(a). Until the

panel issues its opinion, the trial court has no jurisdiction to hear and adjudicate

the malpractice claim. K.D. v. Chambers, 951 N.E.2d 855, 864 (Ind. Ct. App.

2011), trans. denied. “[A] malpractice plaintiff cannot present one breach of the

standard of care to the panel and, after receiving an opinion, proceed to trial

and raise claims of additional, separate breaches of the standard of care that

were not presented to the panel and addressed in its opinion.” Id.

[11] In the preset case, the Horns contend that all of their allegations regarding the

breach of standard of care, including the lack of indications to perform the

procedure, were presented to the medical review panel in their proposed

complaint. However, the record shows that the panel of physicians that

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 comprised the medical review panel were never sent the proposed complaint.

The proposed complaint was sent to the panel chairman, but after the panel of

physicians were chosen, the panel members were not provided with a copy of

the proposed complaint. See Appellees’ App. at 47 (Chairman “did not provide

the . . . panelists with a copy of the proposed complaint.”). Therefore, the

record shows that the panel members did not receive and were not able to

consider the proposed complaint, and any allegations contained within the

proposed complaint were not presented to the medical review panel.

[12] As to the evidence that was presented to the medical review panel, it consisted

of the Submission and certain medical evidence attached as exhibits. In the

Submission, although they make general references to alleging malpractice in

connection with “diagnosing” and “diagnostic testing” of Rita, in the

contention section of the Submission, the Horns state that their “contentions

are straight forward and very brief” and are that the Defendants “breached the

appropriate standard of care by failing to perform the catheterization and

angiogram in a reasonably, careful and prudent manner.” Appellants’ App. at

54, 58. Further, in the facts section of the Submission, the Horns do not

mention the cardiac stress tests administered by Dr. Jara or that he failed to

consider the past normal results of these prior tests. Id. at 57. The facts set out

in the Submission begin with the angiogram procedure being performed and

then continue to discuss the complication of bleeding that occurred. Id.

[13] Additionally, the Horns included certain medical evidence as exhibits attached

to the Submission as support for their contentions. In our review of the record,

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 however, we found that many of the exhibits were either not included in the

record on appeal or were not able to be readily identified as the exhibits listed as

being attached to the Submission. Of the exhibits we were able to discern from

the record, none presented the issue of whether the angiogram procedure was

indicated under the circumstances. The evidence and exhibits discussed the

actual procedure, how it was performed, the complication of bleeding that

occurred, how that was treated, and the outcome of the procedure; another

exhibit discussed the procedure performed in December 2005 and its outcome.

Pl.’s Exs. 3, 4, 9; Appellants’ App. at 76-79. Because we have not been provided

with the complete evidence that the Horns presented to the medical review

panel in support of the Submission, we are unable to ascertain what that

evidence contained and whether it supported the Horns’ assertion on appeal

that they presented to the medical review panel the issue of whether Dr. Jara

beached the standard of care because the procedure was not indicated. 1

[14] Based on the record before us, we conclude that the medical review panel was

not presented with the question of whether Dr. Jara breached the appropriate

1
The Horns also contend that their allegation regarding the improper diagnosis of Rita is not a new
allegation and was presented to the medical review panel because the angiogram procedure necessarily
included the decision-making process to perform the procedure. However, although “there is no requirement
for . . . plaintiff[s] to fully explicate and provide the particulars or legal contentions regarding the claim,”
Miller by Miller v. Mem’l Hosp. of S. Bend, Inc., 679 N.E.2d 1329, 1332 (Ind. 1997), we do not believe that the
Horns’ stated contention that the Defendants “breached the appropriate standard of care by failing to perform
the catheterization and angiogram in a reasonably, careful and prudent manner,” Appellants’ App. at 58,
clearly established that they were asserting a malpractice claim in reference to the failure to properly diagnose
Rita.

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 standard of care in performing the angiogram procedure because it was not

indicated. Because this issue was not presented to the medical review panel, it

could not be raised at trial. The trial court did not, therefore, abuse its

discretion by excluding the Horns’ expert testimony and evidence related to this

issue and limiting the evidence to the issue of whether Dr. Jara breached the

appropriate standard of care by failing to perform the angiogram procedure

itself in a reasonably careful and prudent manner.

[15] Affirmed.

[16] Riley, J., and Pyle, J., concur.

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