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Wednesday, February 22, 2017

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 12 NFP memorandum decision(s))

For publication opinions today (5):

In C.S., a Minor Child, by Her Next Friends and Parents, John Stevens and Laura Stevens v. Aegis Women's Healthcare, P.C., Brian W. Cook, M.D., Rhonda S. Trippel, M.D., and Lillette (Alice B.) Wood, M.D., a 10-page opinion with amicus briefs filed on both sides, Chief Judges Vaidik writes:

With limited exceptions, a medical-malpractice plaintiff cannot take her case to court until she has submitted a proposed complaint to the Indiana Department of Insurance and received an opinion from a panel of doctors (a “medical review panel”). Once she has made it through the panel process and into court, however, the plaintiff can present any theory of malpractice that (1) was encompassed by the proposed complaint that was before the panel and (2) is related to evidence that was submitted to the panel. McKeen v. Turner, 61 N.E.3d 1251 (Ind. Ct. App. 2016), trans. pending.

In the case before us, John and Laura Stevens filed a proposed complaint against Aegis Women’s Healthcare, P.C. and several of its doctors (collectively, “Aegis”) after their daughter was born, via emergency c-section, with various health problems. The medical review panel issued an opinion in favor of Aegis, theory of malpractice is that Aegis waited too long to perform the c-section. The parties agree that this theory fell within the broad allegations in the Stevenses’ proposed complaint but dispute whether there was evidence relating to the theory submitted to the panel. Finding that there was, we reverse the trial court’s grant of summary judgment to Aegis. * * *

The Stevenses ask us to reverse the trial court’s ruling that they did not present their “delayed-c-section” theory to the medical review panel and that they are therefore barred from presenting it in court. On appeal from a grant of summary judgment, we address the issues de novo, giving no deference to the trial court’s decision. * * *

Because evidence relating to the “delayed-c-section” theory was submitted to the medical review panel, and because the proposed complaint encompassed that theory, the Stevenses are entitled to present it in court. See McKeen, 61 N.E.3d at 1261. Therefore, we reverse the trial court’s grant of summary judgment in favor of Aegis.

In Pastor Llobet, M.D. v. Juan Gutierrez , 12-page opinion with amicus briefs filed on both sides, Chief Judge Vaidik writes:
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.

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.

Thomas E. Stettler v. State of Indiana, a 15-page opinion, Judge Baily concludes:
The trial court’s admission of evidence barred by Evidence Rule 404(b) was harmless error. The prosecution did not engage in misconduct during closing arguments, and there was accordingly no fundamental error.
In Ashley N. McFall v. State of Indiana, a 15-page opinion, Chief Judge Vaidik writes:
Ashley N. McFall was convicted of Class A felony dealing in methamphetamine (manufacturing) based in part on videos that a man took of her using his personal cell phone and then showed to a detective. The man, however, did not testify at trial.

In order to authenticate videos under the “silent-witness theory,” there must be evidence describing the process or system that produced the videos and showing that the video is an accurate representation of the events in question. See Ind. Evidence Rule 901(b)(9). Here, however, when the videos were admitted into evidence at trial during the detective’s testimony, there was no showing that the videos had not been altered before they were shown to the detective. However, we find that any error in the admission of the videos under the silent-witness theory was rendered harmless by McFall’s subsequent testimony.

McFall also contends that the evidence is insufficient to support her conviction and that her forty-year sentence is inappropriate. While we find that the evidence is sufficient to support her conviction, we revise her sentence to the advisory term of thirty years given that this is McFall’s first felony conviction and the progress that she has made since her arrest to overcome her addiction and get her life in order.

In Bryce A. Swihart v. State of Indiana, a 9-page opinion, Judge Bailey concludes:
There was sufficient evidence to support Swihart’s conviction. The trial court did not err in determining jail credit time. Affirmed.
NFP civil decisions today (2):

Lisa Baushke v. Eric Miller (mem. dec.)

Han Chong v. Jung Hee Kim (mem dec.)

NFP juvenile and criminal decisions today (10):

Samuel R. White v. State of Indiana (mem. dec.)

Brandon Artis v. State of Indiana (mem. dec.)

Alberto Cruz v. State of Indiana (mem. dec.)

Sarah Speck v. State of Indiana (mem. dec.)

Thomas Yoder v. State of Indiana (mem. dec.)

Asia Marshall v. State of Indiana (mem. dec.)

James Jenkins v. State of Indiana (mem. dec.)

Darrell Berry v. State of Indiana (mem. dec.)

Jason J. Green v. State of Indiana (mem. dec.)

Jay E. Millen v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on February 22, 2017 11:08 AM
Posted to Ind. App.Ct. Decisions