COA: Theories presented to trial court in med-mal cases were presented to review panels

Olivia Covington for www.theindianalawyer.com

After finding that evidence of disputed medical malpractice theories in two cases were presented to the medical review panels in each, Indiana Court of Appeals has reversed summary judgment in favor of a health care provider in one case but is allowing the provider in the other to present evidence related to a subsequent malpractice theory against him.

At oral arguments for Pastor Llobet, M.D. v. Juan Gutierrez and C.S. v. Aegis Women’s Health, et al., one month ago, the appellate panel of Chief Judge Nancy Vaidik and Judges Cale Bradford and Elaine Brown wrestled with one essential question: Is it ever acceptable for parties to a medical malpractice case to present new evidence at trial that was not presented at the medical review panel stage? Under the doctrine of K.D. v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011), the answer is no.

But plaintiffs’ counsel in each case argued that the theories they presented at trial were not new, but instead were encompassed in the general theories presented to the panels, contrary to the defendants’ allegations.

In C.S., Laura Stevens was a 40-year-old expectant mother in her ninth month of pregnancy when she reported that she could no longer feel her baby moving. After visiting Aegis Women’s Health and eventually being transferred to the IU Health Bloomington Hospital, Stevens’ daughter, C.S., was delivered via an emergency C-section with significant health issues.

During the medical review panel process, the Stevenses alleged that Aegis “failed to adequately monitor Laura’s pregnancy and (C.S.’s) condition” and “failed to provide appropriate medical care.” Their narrative focused on Stevens’ status as Rh-negative, and their submissions did not include fetal heart rate monitoring strips created at the hospital.

The panel ultimately found that Aegis did not breach the standard of care, and as they were preparing to take their case to the Monroe Circuit Court, the Stevenses alleged that Aegis “failed to adequately monitor Laura’s pregnancy and C.S.’s condition.” Aegis argued that such a claim could not be presented to the trial court because the medical review panel theory focused on Stevens’ Rh-negative status, and the trial court judge agreed. Summary judgment was ultimately entered in favor of Aegis.

Conversely, in Llobet, a medical review panel found that Llobet did breach the standard of care when he broke a stent in Juan Gutierrez’s body during an angiogram, necessitating further operations. During the panel process, Gutierrez alleged that Llobet was negligent in his technical performance of the angiogram.

However, before the case went to the Lake Superior Court, Gutierrez developed a second malpractice theory, this time alleging that the angiogram was unnecessary because it had not been indicated. In response, Llobet turned over records that he claimed would prove that the angiogram was indicated while also moving to strike his former patient’s new theory.

The trial court, however, allowed Gutierrez to proceed with the non-indication theory, yet prevented Llobet from entering his proposed records as evidence.

In both cases, Vaidik, writing for the unanimous panel, wrote that the theories brought at trial were encompassed in the theories considered by the review panel and, thus, were acceptable for the trial court to consider.

In the Stevenses’ case, Vaidik wrote that although the fetal monitoring strips and results from a related non-stress test were not submitted to the panel, “the evidence that the panel did have put it on notice not only that the NST and the fetal-heart-rate monitoring had been conducted, but also that the results of both were abnormal … .”

“And to the extent that the panel was incapable of fully evaluating the timeliness of the C-section without the tracings themselves,” Vaidik wrote, “we simply note that it had a right to request them.”

Thus, the panel overturned summary judgment in Aegis’ favor.

But in Llobet’s case, the appellate relied on the findings of McKeen v. Turner, 61 N.E.3d 1251, 1261 (Ind. Ct. App. 2016), which held that the proposition in K.D.  “was wrongly decided.” Thus, because Llobet had premised his appellate argument on K.D., the appellate court rejected that argument under the new premise of McKeen.

Specifically, McKeen held that under the case of Miller v. Memorial Hospital of South Bend, Inc., 679 N.E.2d 1329, 1332 (Ind. 1997), a plaintiff can raise a theory in court if it was encompassed by the proposed complaint before the panel and if evidence related to it was submitted to the panel.

“Dr. Llobet asserts that the proposed complaint ‘did not provide notice that treatment that occurred on September 25, 2007 was at issue,’” Vaidik wrote in the Llobet opinion. “But the events of September 25 are ‘at issue’ only insofar as they related 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, we affirm the trial court’s denial of Dr. Llobet’s motion to strike.”

However, the panel did reverse the Lake Superior Court’s decision to bar Llobet from submitting the subsequent records related to the “angiogram-not-indicated” theory.

When K.D. was handed down in July 2011, Llobet was operating under the assumption that medical malpractice plaintiffs were limited to the theories of malpractice that were specifically presented to the medical review panel, the chief judge wrote. Thus, the records likely never even crossed his mind.

“And even if they did, we would not fault him for concluding that there were completely irrelevant to this litigation,” Vaidik said. “If he had any inkling that the records were relevant, surely he would have produced them, since they are favorable to him.”