                                                                     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


      Court of Appeals of Indiana | Opinion 45A04-1605-CT-1133 | February 22, 2017           Page 2 of 12
      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

      Court of Appeals of Indiana | Opinion 45A04-1605-CT-1133 | February 22, 2017   Page 3 of 12
      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

      Court of Appeals of Indiana | Opinion 45A04-1605-CT-1133 | February 22, 2017   Page 4 of 12
      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,


      Court of Appeals of Indiana | Opinion 45A04-1605-CT-1133 | February 22, 2017   Page 5 of 12
       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).




       Court of Appeals of Indiana | Opinion 45A04-1605-CT-1133 | February 22, 2017   Page 6 of 12
                              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

       Court of Appeals of Indiana | Opinion 45A04-1605-CT-1133 | February 22, 2017   Page 7 of 12
                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


       Court of Appeals of Indiana | Opinion 45A04-1605-CT-1133 | February 22, 2017   Page 9 of 12
       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


       Court of Appeals of Indiana | Opinion 45A04-1605-CT-1133 | February 22, 2017   Page 10 of 12
       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

       Court of Appeals of Indiana | Opinion 45A04-1605-CT-1133 | February 22, 2017   Page 11 of 12
       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.




       Court of Appeals of Indiana | Opinion 45A04-1605-CT-1133 | February 22, 2017   Page 12 of 12
