      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.
      Court of Appeals of Indiana | Memorandum Decision 64A03-1512-CT-2251 | September 20, 2016      Page 1 of 9
      (“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.




      Court of Appeals of Indiana | Memorandum Decision 64A03-1512-CT-2251 | September 20, 2016   Page 2 of 9
[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


      Court of Appeals of Indiana | Memorandum Decision 64A03-1512-CT-2251 | September 20, 2016   Page 3 of 9
      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.

      Court of Appeals of Indiana | Memorandum Decision 64A03-1512-CT-2251 | September 20, 2016   Page 4 of 9
       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

       Court of Appeals of Indiana | Memorandum Decision 64A03-1512-CT-2251 | September 20, 2016   Page 5 of 9
       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


       Court of Appeals of Indiana | Memorandum Decision 64A03-1512-CT-2251 | September 20, 2016   Page 6 of 9
       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,

       Court of Appeals of Indiana | Memorandum Decision 64A03-1512-CT-2251 | September 20, 2016   Page 7 of 9
       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.



       Court of Appeals of Indiana | Memorandum Decision 64A03-1512-CT-2251 | September 20, 2016            Page 8 of 9
       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.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1512-CT-2251 | September 20, 2016   Page 9 of 9
