FILED
Feb 22 2017, 5:48 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael E. O’Neill Barry D. Rooth
Nathan D. Hansen Holly S.C. Wojcik
O’Neill McFadden & Willett LLP Theodoros & Rooth PC
Schererville, Indiana Merrillville, Indiana
David W. Westland
Westland & Bennett PC
Schererville, Indiana
ATTORNEYS FOR AMICUS CURIAE ATTORNEY FOR AMICUS
DEFENSE TRIAL COUNSEL OF CURIAE
INDIANA INDIANA TRIAL LAWYERS
Donald B. Kite, Sr. ASSOCIATION
Wuertz Law Office, LLC Jerry Garau
Indianapolis, Indiana Garau Germano, P.C.
Indianapolis, Indiana
Crystal G. Rowe
Kightlinger & Gray, LLP
New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Court of Appeals of Indiana | Opinion 45A04-1605-CT-1133 | February 22, 2017 Page 1 of 12
Pastor Llobet, M.D., February 22, 2017
Appellant-Defendant, Court of Appeals Case No.
45A04-1605-CT-1133
v. Appeal from the Lake Superior
Court
Juan Gutierrez, The Honorable Calvin Hawkins,
Appellee-Plaintiff Judge
Trial Court Cause No.
45D02-1307-CT-45
Vaidik, Chief Judge.
Case Summary
[1] Dr. Pastor Llobet performed an angiogram on Juan Gutierrez, and Gutierrez
now claims that Dr. Llobet committed medical malpractice. As required by
Indiana’s Medical Malpractice Act, Gutierrez first filed a proposed complaint
with the Department of Insurance and presented his case to a panel of doctors
(a “medical review panel”). His specific argument to the panel was that Dr.
Llobet was negligent in his technical performance of the angiogram. The panel
issued an opinion in favor of Gutierrez, who then took the case to court.
[2] Shortly before trial was set to begin, it became apparent that Gutierrez intended
to present a second theory of malpractice: that the angiogram was unnecessary,
i.e., not “indicated.” At that point, Dr. Llobet turned over records from testing
that was performed the day before the angiogram—records that apparently
support his position that the angiogram was, in fact, indicated. He also moved
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to strike Gutierrez’s “angiogram-not-indicated” theory altogether, on the basis
that Gutierrez did not argue it to the medical review panel. Gutierrez
countered with a motion to bar Dr. Llobet from using the testing records,
noting that the discovery deadline had passed and arguing that the records had
been requested on multiple occasions. The trial court denied Dr. Llobet’s
motion but granted Gutierrez’s motion. As it stands, then, Gutierrez would be
allowed to present his “angiogram-not-indicated” theory, but Dr. Llobet would
not be allowed to respond with a key piece of evidence contradicting that
theory.
[3] Because Gutierrez’s “angiogram-not-indicated” theory was encompassed by the
proposed complaint he filed with the Department of Insurance and is related to
evidence that was submitted to the medical review panel, we affirm the denial
of Dr. Llobet’s motion to strike. However, because we conclude that Dr.
Llobet should be allowed to use the pre-angiogram testing records to respond to
the allegation that the angiogram was not indicated, we reverse the trial court’s
order barring that evidence.
Facts and Procedural History
[4] In April 2007, Gutierrez began seeing Dr. Llobet for treatment of peripheral
vascular disease. On September 25, 2007, a technician for Dr. Llobet
performed an arterial Doppler study and ankle-brachial index (“ABI”) testing
on Gutierrez (ABI testing measures and compares ankle and arm blood
pressures). Dr. Llobet decided to perform an angiogram (a procedure used to
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obtain x-rays of arteries and veins) and was doing so the next day when a
previously placed stent broke and became dislodged. Gutierrez underwent
surgery to have the broken stent removed, and he claims that he suffered serious
injuries as a result.
[5] In September 2009, Gutierrez filed a proposed complaint against Dr. Llobet
with the Indiana Department of Insurance. He alleged, generally, that “[t]he
health care provided to the Plaintiff, JUAN GUTIERREZ, on September 26,
2007, fell below the applicable standard of care[.]” Appellant’s App. Vol. II p.
31. A medical review panel was formed, and the parties made submissions to
the panel. In his submission to the panel, Gutierrez more specifically alleged
that “[t]he cause of the broken left iliac artery stent during the September 26,
2007 angiogram procedure was negligent forcing of the Ansel sheath through
the existing iliac stent by Dr. Llobet.” Id. at 65.
[6] In August 2012, the medical review panel requested additional information
from the parties. Among other things, the panel asked:
Before the September 2007 procedure, were any additional tests
performed? For instance, in the admission note of Dr. Llobet
dated September 26, 2007, it made reference to an abnormal
Doppler. The panelists do not believe that this Doppler finding
was included in the information. If it was, could someone please
direct us to it[?] If it was not, were there any written findings
from the same[?]
Id. at 131. In response, Dr. Llobet produced records from the Doppler study
done on September 25, 2007, but not records of the ABI testing done the same
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day. In May 2013, the medical review panel unanimously concluded that Dr.
Llobet “failed to comply with the appropriate standard of care as charged in the
complaint.” Id. at 133-43.
[7] Two months later, Gutierrez filed suit against Dr. Llobet. In his complaint, he
noted the opinion of the medical review panel and alleged again that Dr.
Llobet’s actions “were negligent, careless, and fell below the applicable
standard of care.” Id. at 74.
[8] Trial was set to begin on February 16, 2016, but after Gutierrez retained new
attorneys on February 2, the trial court pushed the trial back to the end of May.
On February 11, one of Gutierrez’s new attorneys deposed Dr. Llobet’s expert,
Dr. Lowell Steen, and questioned him extensively about the indications for the
angiogram. Just before the beginning of his own deposition on February 19,
Dr. Llobet produced, for the first time, records of the pre-angiogram ABI
testing. Dr. Llobet testified during the deposition that he had located the ABI
records two days earlier, on February 17, after learning that Dr. Steen had been
questioned about the indications for the angiogram.
[9] Shortly after his deposition, however, Dr. Llobet moved to strike any allegation
by Gutierrez that the angiogram was not indicated, on the ground that
Gutierrez’s only claim to the medical review panel had been that Dr. Llobet’s
technical performance of the angiogram had been negligent. He relied on K.D.
v. Chambers, where this Court held that “a malpractice plaintiff cannot present
one breach of the standard of care to the panel and, after receiving an opinion,
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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.” 951
N.E.2d 855, 864 (Ind. Ct. App. 2011), trans. denied, disapproved on other grounds
by Spangler v. Bechtel, 958 N.E.2d 458 (Ind. 2011). Gutierrez filed an opposition
to Dr. Llobet’s motion and then filed his own motion asking the trial court to
bar Dr. Llobet from using the ABI records, given Dr. Llobet’s delay in
disclosing them.
[10] The trial court issued an order denying Dr. Llobet’s motion to strike and a
separate order granting Gutierrez’s motion to bar the ABI records, but it
certified both orders for interlocutory appeal. Dr. Llobet then sought this
Court’s permission to file such an appeal, which we granted.
Discussion and Decision
[11] The parties cite the deferential abuse-of-discretion standard as the applicable
standard of review. As to the exclusion of the ABI records, we agree. See Hale
v. State, 54 N.E.3d 355, 357 (Ind. 2016) (explaining that discovery rulings are
reviewed only for an abuse of discretion). However, the essence of Dr. Llobet’s
motion to strike the “angiogram-not-indicated” theory was that the theory is
defective as a matter of law. We review such questions de novo. Horton v.
State, 51 N.E.3d 1154, 1157 (Ind. 2016).
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I. Dr. Llobet’s Motion to Strike
[12] On appeal, as in the trial court, Dr. Llobet’s argument regarding his motion to
strike is based on the above-quoted holding in K.D., which he takes to mean
that medical-malpractice plaintiffs “cannot bring one allegation of malpractice
to the attention of the Medical Review Panel, and then attempt to later raise a
separate allegation at trial[.]” Appellant’s Br. p. 6. Because Gutierrez did not
specifically raise his “angiogram-not-indicated” theory to the medical review
panel, Dr. Llobet maintains that he should not be allowed to raise that theory in
court.
[13] Six months after the trial court denied Dr. Llobet’s motion to strike, and two
weeks after Dr. Llobet filed his opening brief, a panel of this Court (with this
author concurring) concluded that K.D., to the extent it stands for the
proposition that a medical-malpractice plaintiff cannot raise in court a theory of
malpractice that was not specifically articulated to the medical review panel,
“was wrongly decided.” McKeen v. Turner, 61 N.E.3d 1251, 1261 (Ind. Ct. App.
2016), trans. pending. We based that conclusion on the following passage from
our Supreme Court’s decision in Miller v. Memorial Hospital of South Bend, Inc.:
We decline to accept Memorial Hospital’s argument that the
plaintiffs’ action is restricted by the substance of the submissions
presented to the medical review panel. Pursuant to the [Indiana
Medical Malpractice Act], the panel was authorized to review the
medical records and other submitted material pertaining to each
defendant’s treatment of Nicholas. While a medical malpractice
plaintiff must, as a prerequisite to filing suit, present the proposed
complaint for review and expert opinion by a medical review
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panel, there is no requirement for such plaintiff to fully explicate
and provide the particulars or legal contentions regarding the
claim.
679 N.E.2d 1329, 1332 (Ind. 1997) (citations omitted). In light of that holding
and the language of the Medical Malpractice Act, we held in McKeen that a
plaintiff can raise a theory in court if (1) it was encompassed, under the liberal
rules of notice pleading, by the proposed complaint that was before the medical
review panel and (2) evidence related to it was submitted to the panel. 61
N.E.3d at 1261. Not surprisingly, Gutierrez relies heavily on McKeen in his
appellee’s brief, which he filed a month after we issued that opinion. In his
reply brief, Dr. Llobet argues that McKeen, not K.D., was wrongly decided and
that under K.D. he should prevail.1
[14] We believe that the holding in McKeen, and the rationale for that holding, are
correct. Therefore, we reject Dr. Llobet’s argument based on K.D. That does
not end our analysis, however, for Dr. Llobet contends, in the alternative, that
Gutierrez’s “angiogram-not-indicated” theory should be stricken even under
McKeen. While he acknowledges that evidence relating to that theory was
submitted to the panel (satisfying the second prong of McKeen), he argues that
the theory was not “encompassed” by Gutierrez’s proposed complaint.
1
Notably, while our Supreme Court denied transfer in K.D., it did so only by virtue of a 2-2 vote, with then-
Justice Dickson, who authored Miller, not participating. 962 N.E.2d 654 (Ind. 2011).
Court of Appeals of Indiana | Opinion 45A04-1605-CT-1133 | February 22, 2017 Page 8 of 12
[15] Dr. Llobet focuses on the fact that the pre-angiogram testing (or alleged lack
thereof) took place on September 25, 2007, while the proposed complaint only
addressed “[t]he health care provided to the Plaintiff, JUAN GUTIERREZ, on
September 26, 2007,” Appellant’s App. Vol. II p. 31 (emphasis added). Dr.
Llobet asserts that the proposed complaint “did not provide notice that
treatment that occurred on September 25, 2007 was at issue[.]” Appellant’s
Reply Br. p. 11. But the events of September 25 are “at issue” only insofar as
they relate to Gutierrez’s ultimate claim that Dr. Llobet performed an
unnecessary angiogram on September 26. Because that claim was plainly
encompassed by Gutierrez’s proposed complaint (and evidence related to the
theory was submitted to the medical review panel), we affirm the trial court’s
denial of Dr. Llobet’s motion to strike.
II. Gutierrez’s Motion to Bar Evidence
[16] Alternatively, Dr. Llobet argues that when the trial court denied his motion to
strike Gutierrez’s “angiogram-not-indicated” theory, it should have also denied
Gutierrez’s motion to bar the ABI records.
[17] In support of his argument, Dr. Llobet notes the following: (1) he disclosed the
records within eight days of learning that Gutierrez intended to raise his “new”
theory; (2) trial was still more than three months away when he disclosed the
records; (3) there was no reason to disclose the records sooner because
Gutierrez was originally only challenging the technical performance of the
angiogram, not the indications for it; (4) the records go to the heart of
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Gutierrez’s “angiogram-not-indicated” theory, so they must be presented to the
jury in order to achieve substantial justice; (5) Gutierrez himself did not strictly
comply with pretrial deadlines and rules, including waiting until after the
discovery deadline to seek to depose Dr. Llobet; (6) Gutierrez never specifically
requested the records; (7) the technician records from studies performed at his
office (such as ABI testing) are kept separate from his patient charts, which is
why they were not disclosed with Gutierrez’s chart; (8) his expert (Dr. Steen)
did not rely upon or even review the ABI records until after Gutierrez raised the
“angiogram-not-indicated” theory; and (9) he obviously did not intentionally
withhold the records in bad faith, since they are favorable to him, i.e., they
support his argument that the angiogram was indicated.
[18] In response, Gutierrez argues that Dr. Llobet received several requests that
should have prompted him to produce the records. In addition to the medical
review panel’s August 2012 question about whether “any additional tests” were
performed before the angiogram, Gutierrez notes that Dr. Llobet did not
provide the records in response to (1) his September 2009 request for “a
complete copy of his medical records and itemized statement,” Appellee’s App.
Vol. II p. 16; (2) his April 2011 request for “[a]ll nursing, surgical tech or other
similar records, notes or the like concerning Juan Gutierrez,” Appellant’s App.
Vol. III p. 188; (3) his July 2014 interrogatories asking Dr. Llobet to identify all
exhibits he intended to introduce at trial and all documents relevant to his
defense; (4) his February 2016 requests for additional information about the
opinions of Dr. Llobet’s expert, Dr. Steen; and (5) his February 2016 request for
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all of Dr. Llobet’s office notes. Gutierrez also emphasizes that Dr. Llobet
located the records two days before his deposition but did not turn them over
until a few minutes before that deposition began, “depriving counsel of the
opportunity to adequately prepare to question Dr. Llobet regarding the testing
and the data.” Appellee’s Br. p. 34.
[19] The facts upon which Dr. Llobet relies are compelling, but so are those cited by
Gutierrez, and if these were the only facts before us, we would be inclined to
defer to the trial court’s decision to bar the ABI records. But the fact that tips
the scales in favor of Dr. Llobet is that starting on July 13, 2011—the day K.D.
was handed down—he was operating under a rule that limited medical-
malpractice plaintiffs to the theories of malpractice that were specifically
presented to the medical review panel. The only specific theory Gutierrez
presented to the medical review panel regarding the September 2007 angiogram
was that Dr. Llobet was negligent in his technical performance of the
procedure. As such, it is entirely possible that the ABI records never even
crossed Dr. Llobet’s mind before February 2016. And even if they did, we
would not fault him for concluding that they were completely irrelevant to this
litigation. If he had any inkling that the records were relevant, surely he would
have produced them, since they are favorable to him.
[20] Gutierrez notes that the discovery deadline has passed and asserts that he is
therefore unable to explore the ABI testing “through deposition and other
discovery methods.” Appellee’s Br. p. 35-36. As a result, he argues, he would
suffer “extreme prejudice” if the ABI records are not excluded. Id. at 35. Under
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the circumstances, we cannot agree. When Dr. Llobet indicated his intent to
pursue this interlocutory appeal, the trial court vacated the May 2016 trial date
and stayed all proceedings. We trust that when this matter returns to the trial
court, Gutierrez will be afforded the opportunity to conduct necessary discovery
regarding the ABI records, including supplemental depositions of Dr. Llobet
and Dr. Steen.
[21] Affirmed in part and reversed in part.
Bradford, J., and Brown, J., concur.
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