Brook v. St. John's Hickey Memorial Hospital

• Decision Date: 13 September 1978
• Docket Number: No. 978S187,978S187
• Citation: 380 N.E.2d 72,269 Ind. 270
• Parties: Arthur A. BROOK and Tracy Lynn Brook, Appellants (Plaintiffs below), v. ST. JOHN'S HICKEY MEMORIAL HOSPITAL, Guy E. Ross, Lawrence Allen and Warren E. Fischer, Appellees (Defendants below).
• Court: Indiana Supreme Court

Page 72

380 N.E.2d 72

269 Ind. 270

Arthur A. BROOK and Tracy Lynn Brook, Appellants (Plaintiffs below), v. ST. JOHN'S HICKEY MEMORIAL HOSPITAL, Guy E. Ross, Lawrence Allen and Warren E. Fischer, Appellees (Defendants below).

No. 978S187.

Supreme Court of Indiana.

Sept. 13, 1978.

J. Conrad Maugans, Bayliff, Harrigan, Cord & Maugans, Kokomo, Michael E. Tancey, Elwood, Douglas D. Church, Roberts, Church & Beerbower, Noblesville, for appellants

Michael A. Bergin of Locke, Reynolds, Boyd & Weisell, John P. Price, Jon D. Krahulik and Robert C. Wolf of Bingham, Summers, Welsh & Spilman, Ralph A. Cohen, Ice, Miller, Donadio & Ryan, Indianapolis, for appellees.

ON PETITION TO TRANSFER

HUNTER, Justice.

This case is before us on the petition to transfer of Warren E. Fischer, M.D. The Court of Appeals, First District, in Brook v. St. John's Hickey Mem. Hosp., (1977) Ind.App., 368 N.E.2d 264, reversed a jury verdict in Dr. Fischer's favor. The Court of Appeals held that the trial court committed reversible error in failing to give certain of the plaintiffs' tendered instructions and ordered a new trial as to Dr. Fischer on that basis. We have granted transfer on the petition of Dr. Fischer. We find that the Court of Appeals committed error in reversing the judgment of the trial court as to Dr. Fischer and hereby affirm the trial court.

This case began as an action by Tracy Lynn Brook and her father (Arthur) against St. John's Hickey Memorial Hospital, Guy E. Ross, M.D., Lawrence Allen, M.D., and Dr. Fischer. The record discloses that Tracy was diagnosed by a specialist as having a possible urological disorder and that X-rays taken with a contrast medium would be necessary to confirm the diagnosis. The Court of Appeals summarized Dr. Fischer's role in Tracy's treatment as follows:

"Dr. Fischer, a radiologist, injected the contrast medium into the calves of both "A short while (four months later) after being discharged from the hospital Tracy began to have trouble with her right leg. Her leg was stiff and her heel began to lift off the ground. Tracy's problem was later diagnosed as a shortening of the achilles tendon, which May have been precipitated by some kind of trauma to her ankle or calf muscle. After two operations and other expensive treatment, including the wearing of a leg brace, Tracy's problem was substantially corrected." 368 N.E.2d 264, 266, 267 (emphasis added).

of Tracy's legs, because he was unable to find a vein which he could use. The package insert, which contained the manufacturer's directions for injecting the contrast medium, recommended that the contrast medium be injected into the gluteal muscles (buttocks). Dr. Fischer had read articles in medical journals which warned against making intramuscular injections into the buttocks or thighs especially in tiny children, because possible nerve and muscle damage could result. That is why Dr. Fischer chose to inject the contrast medium into the calves of Tracy's legs, because, after the buttocks and the thighs, they were the next largest muscle mass away from the trunk of the body.

The jury returned a favorable verdict to all the defendants and the Brooks appealed on eight issues:

1. Whether the verdict of the jury in favor of Dr. Guy E. Ross and Dr. Lawrence Allen was contrary to law;

2. Whether the trial court erred in refusing to give plaintiffs' tendered instruction No. 5 to the jury;

3. Whether the trial court erred in refusing to give plaintiffs' tendered instruction No. 1 to the jury.

4. Whether the trial court erred in giving Dr. Ross's instructions Nos. 2, 3, and 4 to the jury;

5. Whether the trial court erred in giving Dr. Fischer's instructions Nos. 4 and 5;

6. Whether the trial court erred in granting St. John's Hickey Memorial Hospital's motion for judgment on the evidence;

7. Whether the trial court erred in refusing to give plaintiffs' tendered instruction No. 4 to the jury; and

8. Whether the verdict in favor of Dr. Warren E. Fischer was contrary to law.

Issues One-Five

The Court of Appeals upheld the verdict as to all the defendants except Dr. Fischer. The Court found no reversible error in issues one through five. As we agree with the Court of Appeals' disposition of these issues, we incorporate their opinion on these issues by reference herein. (See Appendix.)

Issue Six

While we approve of the affirmance of the trial court by the Court of Appeals on issue six, we feel compelled to clarify the reasons for reaching this result. The Brooks contend that the trial court erred in granting St. John's Hickey Memorial Hospital's motion for judgment on the evidence in that there existed an issue of material fact as to whether one of the hospital employees was negligent in failing to recognize and report to the hospital administrators any departure from standard injection which may have been made by Dr. Fischer.

There is evidence that a qualified X-ray technologist was always present when Dr. Fischer made an injection of contrast medium into a patient prior to the taking of an X-ray. However there was no evidence which could reasonably lead to the conclusion that the technologists were qualified by any training to know the propriety of injection sites chosen by the licensed radiologist. There was no evidence that the technologists were required to be licensed at that time. All that is required at present is that technologists employed after August 1, 1977, be graduates of a two-year program. Ind.Adm.R. and Reg. § (16-10-1-12)-A28-4 (Burns Supp.1978).

The testimony of the plaintiffs' expert, who was licensed as both an attorney and a In view of the fact that there is no evidence that the technologists at St. John's Hickey Memorial Hospital knew that the injection site chosen by Dr. Fischer may have been anything other than appropriate, we hold that there is no issue of material fact and that the evidence is insufficient, as a matter of law, to find any negligence of hospital employees in failing to recognize and report any departure from normal practices which may have been utilized by Dr. Fischer. There was therefore no proof of liability on the part of St. John's Hickey Memorial Hospital and there was no error in granting the Hospital's motion for judgment on the evidence.

medical doctor, was Pure speculation as to the extent of the training or knowledge of any specific technologist at St. John's. This testimony was sophistic in nature plausible but fallacious for the record shows that the judgmental decisions were to be made by the licensed radiologists and not the technologists.

Issue Seven

In issue seven, the Brooks contended that the trial court erred in refusing to give to the jury plaintiffs' tendered instruction No. 4 which reads as follows:

"You are instructed that a Radiologist is not limited to the most generally used of several modes of procedure and the use of another mode known and proved by the profession is proper, but every new method of procedure should pass through an experimental stage in its development and a Radiologist is not authorized in trying untested experiments on patients."

The Brooks alleged that Dr. Fischer was negligent in choosing an injection site which had not been specifically recommended by the medical community and that this choice of an unusual injection site was a medical experiment. The trial court refused to give this instruction on the basis that since no substantial evidence of a medical experiment had been introduced, it would be erroneous to give an instruction covering medical experiments. We agree.

The Court of Appeals found that since there was no evidence presented which showed that any other doctors had used the calf muscles as an injection site, Dr. Fischer's use of them may have been a medical experiment. We disagree. The record clearly shows that Dr. Fischer had several compelling, professional reasons for choosing the calf muscles as an injection site for the contrast medium in this case.

First, the record shows that Dr. Fischer had read medical journals which cautioned against the injection of the contrast medium into the buttocks (gluteal area) and thighs of infants and small children. One article from the Journal of the American Medical Association, which was introduced into the record, specifically warns:

"Anyone concerned with infants and children must be aware that injection into the buttock may cause paralysis in the lower extremity. It is not often recognized that serious sciatic nerve injury can result from intragluteal administration of therapeutic and prophylactic agents. Injection injury of the sciatic nerve is more common than supposed and may be responsible for paralytic deformities which may be misdiagnosed as congenital club feet or the sequelae of poliomyelitis. The newborn infant, and especially the small premature infant, is more likely to suffer from this complication. Any age group is vulnerable, and injury may result from a solitary injection. By abandoning the intragluteal site and choosing another area for intramuscular injections, physicians may spare their patients unnecessary handicaps." J.A.M.A., July 23, 1960, Sciatic Nerve Injury in Infants, p. 1336.

Tracy Brook was only twenty-three months old when the injection was given. Dr. Fischer testified that other articles had also warned against the use of the thighs in young children. Because Dr. Fischer was trying to avoid any damage to the sciatic nerve, he chose the next largest muscle mass "away from the trunk" as the site for the injection.

Second, Dr. Fischer had used this injection site successfully on children on prior Too often courts have confused judgmental decisions and experimentation. Therapeutic innovation has long been recognized as permissible to avoid serious consequences. ¹ The everyday practice of medicine involves constant judgmental decisions by physicians as they move from one patient to another in the conscious institution of procedures, special tests,...