from the Lake Superior Court The Honorable Calvin Hawkins,
Judge Trial Court Cause No. 45D02-1307-CT-45
ATTORNEYS FOR APPELLANT Michael E. O'Neill Nathan D.
Hansen O'Neill McFadden & Willett LLP Schererville,
ATTORNEYS FOR APPELLEE Barry D. Rooth Holly S.C. Wojcik
Theodoros & Rooth PC Merrillville, Indiana David W.
Westland Westland & Bennett PC Schererville, Indiana
ATTORNEYS FOR AMICUS CURIAE DEFENSE TRIAL COUNSEL OF INDIANA
Donald B. Kite, Sr. Wuertz Law Office, LLC Indianapolis,
Indiana Crystal G. Rowe Kightlinger & Gray, LLP New
ATTORNEY FOR AMICUS CURIAE INDIANA TRIAL LAWYERS ASSOCIATION
Jerry Garau Garau Germano, P.C. Indianapolis, Indiana
Vaidik, Chief Judge.
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
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 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.
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.
and Procedural History
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 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.
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
In August 2012, the medical review panel requested additional
information from the parties. ...