Pastor Llobet, M.D. v. Juan Gutierrez
2017 Ind. App. LEXIS 74
| Ind. Ct. App. | 2017Background
- In Sept. 2007 Dr. Llobet performed an angiogram on Gutierrez; a pre-existing iliac stent fractured during the procedure and Gutierrez alleged resulting injuries from malpractice.
- Gutierrez filed a proposed complaint with Indiana Department of Insurance and submitted to a medical review panel alleging negligent technical performance of the angiogram.
- The medical review panel requested additional pre-procedure testing records; Llobet produced the Doppler record but not the ankle-brachial index (ABI) test from Sept. 25, 2007. The panel issued an opinion favorable to Gutierrez.
- After suit was filed and following new counsel for Gutierrez, Gutierrez indicated he would assert an alternative theory that the angiogram was not indicated (i.e., unnecessary). Two days before his deposition Llobet located and then produced the ABI records.
- Llobet moved to strike the "angiogram-not-indicated" theory for not having been presented to the panel; Gutierrez moved to exclude the belatedly produced ABI records as untimely. The trial court denied the motion to strike but granted exclusion of the ABI records; those rulings were appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff may pursue at trial a theory of malpractice not specifically articulated to the medical review panel | Gutierrez: theory was encompassed by his proposed complaint (liberal notice pleading) and related evidence was submitted to the panel | Llobet: per K.D., plaintiff cannot raise a new, separate theory at trial that was not presented to the panel | Court: plaintiff may try the theory because it was encompassed by the proposed complaint and evidence relating to it was before the panel (adopts McKeen approach) |
| Whether pre-angiogram ABI records (produced shortly before deposition) should be excluded as untimely discovery | Gutierrez: late production prevented necessary discovery and prejudiced trial preparation; exclusion appropriate | Llobet: records were found and produced promptly after learning the theory; trial was months away; records favor defendant and were not intentionally withheld | Court: exclusion was erroneous — defendant may use the ABI records; appellant's disclosure timing and changed legal landscape justified admission and opportunity for further discovery |
Key Cases Cited
- Miller v. Memorial Hosp. of S. Bend, Inc., 679 N.E.2d 1329 (Ind. 1997) (medical review panel submissions need not fully detail all particulars or legal contentions; broad notice pleading contemplated)
- McKeen v. Turner, 61 N.E.3d 1251 (Ind. Ct. App. 2016) (plaintiff may pursue at trial a theory encompassed by the proposed complaint and supported by evidence submitted to the medical review panel)
- K.D. v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011) (earlier holding restricting plaintiffs to theories presented to the medical review panel)
- Hale v. State, 54 N.E.3d 355 (Ind. 2016) (discovery rulings reviewed for abuse of discretion)