Rita Horn and Charles Horn v. Cesar Antonio Jara, M.D. and Northwest Indiana Cardiovascular Physicians, P.C. (mem. dec.) , 63 N.E.3d 1 ( 2016 )

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