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Llobet v. Gutierrez

Court of Appeals of Indiana

February 22, 2017

Pastor Llobet, M.D., Appellant-Defendant,
v.
Juan Gutierrez, Appellee-Plaintiff

         Appeal 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, Indiana

          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 Albany, Indiana

          ATTORNEY FOR AMICUS CURIAE INDIANA TRIAL LAWYERS ASSOCIATION Jerry Garau Garau Germano, P.C. Indianapolis, Indiana

          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 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 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. ...


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