Pastor Llobet, M.D. v. Juan Gutierrez

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

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 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).

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[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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