## Facts

- A two-year-old child, Tracy Lynn Brook, underwent diagnostic X-rays requiring injection of a contrast medium.
- The contrast medium’s package insert recommended intramuscular injection into the gluteal muscles (buttocks).
- Radiologist Warren E. Fischer, M.D. administered the contrast medium by injecting into the calves of both legs after being unable to locate a suitable vein.
- Fischer had read medical journal articles warning against intramuscular injections into the buttocks or thighs of very young children due to possible nerve and muscle damage.
- Fischer selected the calves as an alternative intramuscular site, reasoning they were the next largest muscle mass away from the trunk after buttocks and thighs.
- Months later, Tracy developed right-leg problems, including an Achilles tendon condition requiring therapy; plaintiffs attributed the condition to the calf injections.
- Plaintiffs sued for malpractice and argued that injecting at a site not recommended by the medical community constituted improper “experimentation” without consent.
- At trial against Fischer, the court refused plaintiffs’ tendered “experimentation” instruction that would have treated deviation from the recommended injection site as experimental; the jury found for Fischer.
- The Court of Appeals reversed and ordered a new trial based on instructional error; the Indiana Supreme Court accepted transfer as to Fischer.

## Issues

1. Whether a physician’s departure from a customary technique constitutes “experimentation” when undertaken on reasonable medical grounds supported by legitimate medical information.
2. Whether the trial court committed reversible error by refusing plaintiffs’ proposed jury instruction equating non-recommended injection-site selection with experimentation.

## Decision

- The Indiana Supreme Court granted transfer, vacated the Court of Appeals’ reversal as to Fischer, and affirmed the trial court’s judgment for Fischer.
- The court held that performing an unusual procedure is not, by itself, “experimentation” when the physician acts on reasonable medical grounds.
- The trial court properly refused the plaintiffs’ instruction because it misstated the law by collapsing therapeutic medical judgment into “experimentation.”
- The instructions given adequately presented the governing negligence and standard-of-care framework, so no reversible instructional error occurred.

## Legal Principles

- A physician does not conduct “experimentation” merely by employing an unusual or non-customary procedure if the choice is made in good-faith treatment and rests on a reasonable medical basis.
- Medical judgment and therapeutic innovation in response to patient-specific circumstances are distinct from improper experimentation.
- A proposed jury instruction may be refused when it inaccurately characterizes lawful medical judgment as per se wrongful based solely on deviation from customary practice or manufacturer recommendations.
- Deviation from customary practice is not dispositive; liability turns on whether the physician’s conduct meets the applicable professional standard of care under the circumstances.

## Conclusion

The court upheld a defense verdict for the radiologist, ruling that a non-standard injection-site choice supported by medical literature and clinical judgment was not “experimentation” as a matter of law and that the trial court correctly refused an instruction that would have treated deviation from customary recommendations as inherently improper.


Brook v. St. John’s Hickey Mem’l Hosp., 269 Ind. 270, 380 N.E.2d 72 (Ind. 1978)