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
- Whether a physician’s departure from a customary technique constitutes “experimentation” when undertaken on reasonable medical grounds supported by legitimate medical information.
- 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.