Joy v. Chau, 1-1176A223

• Citation: 377 N.E.2d 670,177 Ind.App. 29
• Decision Date: 28 June 1978
• Docket Number: No. 1-1176A223,1-1176A223
• Parties: Jack JOY and Betty Joy, Appellants (Plaintiffs below), v. Andrew Y. S. CHAU, Appellee (Defendant below).
• Court: Court of Appeals of Indiana

Page 670

377 N.E.2d 670

177 Ind.App. 29

Jack JOY and Betty Joy, Appellants (Plaintiffs below), v. Andrew Y. S. CHAU, Appellee (Defendant below).

No. 1-1176A223.

Court of Appeals of Indiana,First District.

June 28, 1978.

F. Boyd Hovde, Townsend, Hovde & Townsend, Indianapolis, for appellants; John J. Thomas, Thomas & Thomas, Brazil, of counsel.

Patrick, Ratcliffe, Gabbert, Wilkinson, Goeller & Modesitt, Terre Haute, for appellee.

LYBROOK, Presiding Judge.

Jack Joy and Betty Joy, plaintiffs-appellants, appeal from the entry of judgment in favor of Dr. Andrew Y. S. Chau, defendant-appellee. The jury returned a verdict in favor of Chau in a medical malpractice action initiated against him by the Joys as a result of treatment rendered upon Jack Joy following an automobile accident.

The facts most favorable to Chau indicate that Jack Joy was a part- time musician who had been so employed at the Eagles Lodge on the evening of December 11, 1970. During the early morning hours of December 12, 1970, Joy was involved in a one car accident in Terre Haute. As a result of that incident, Joy received a nasal fracture, fracture to the left hand, fracture of both maxillae (cheekbones), laceration of the upper lip, fracture of the right femur with marked deformity, compound fracture of the right ankle with a dirty wound, fracture of the left patella, right chest not breathing and swelling of both knees. This diagnosis was made by Dr. Chau in the emergency room the day of the accident. On January 5, 1971, Dr. Chau discovered that Joy also had a fracture of the right patella, but did not record this injury in the hospital chart or in the discharge summary.

Dr. Chau is a board certified surgeon whose practice basically consists of orthopedics, plastic and general surgery. During the course of Joy's treatment, Dr. Chau repaired the lip laceration, reduced the fracture of the left hand, reduced the nasal fracture, and repaired and reduced the fracture of the right ankle. The injury to the ankle and the accompanying laceration led to early knowledge that the ankle would probably be permanently painful or require fusion. After surgery, traction was applied to Joy's right leg to stabilize the femur. Dr. Chau intended to apply a spica cast (from the waist, around the body and down the right leg to the toes) after sufficient healing had occurred.

On December 22, 1970, Dr. Chau performed surgery on Joy's left patella, repairing the broken patella and stitching together the ruptured tendon. Although normal practice is to apply a cast to immobilize the leg following such surgery, because Joy was confined to bed, no cast was applied.

On January 2, 1971, Dr. Chau observed a rash on Joy's shoulders and back, and it was Chau's opinion that the rash was caused by perspiration and not infection.

On January 4, 1971, Dr. Chau had Joy's right femur X ray, performed a personal examination and determined that the callus formation was sufficient to prevent rotation or angulation of the femur. Thus, on January 5, 1971, Dr. Chau removed the cast from the right ankle, applied a long leg cast to the right leg, and removed the right leg from traction. Dr. Chau testified that the rash on Joy's back entered heavily in his decision to apply the long leg cast at that time. He further testified that he normally leaves a broken femur in traction for eight weeks and then applies a spica cast, not a long leg cast. An X ray taken on January 5, 1971, showed an angulation of the femur which had not existed prior to the application of the long leg cast. This X ray also revealed a comminuted fracture of the right patella which Dr. Chau elected not to treat. At this time Dr. Chau knew the right femur would heal with a 25 to 30 degree rotation. Dr. Chau did not inform Joy of the broken right patella, the rotation of the femur, that additional surgery would be needed, and did not discuss the inter relationship of the three injuries to his right leg.

On January 12, 1971, Dr. Chau ordered Joy to physical therapy to begin weight bearing on his left leg.

In October, 1971, Joy was operated on by Dr. Harold Rosene who testified at the trial. Dr. Rosene indicated that he operated on both of Joy's knees, shortened the left patellar tendon, repaired the fracture to the right patella and repaired the right patellar tendons. In February, 1972, Dr. Rosene performed a second surgery on Joy. This surgery involved cutting the femur, correcting the rotation and alignment, attempting to lengthen the leg and placing two rods in the femur to stabilize the bone. On March 29, 1972, Dr. Rosene performed a fusion on Joy's right ankle.

Three expert witnesses, other than those previously mentioned, testified at the trial. They expressed varying views regarding the propriety of the treatment rendered by Dr. Chau in the management of Joy's injuries. All the physicians agreed that Joy has limited use of his right leg and more particularly his right knee. The Joys testified as to the damages resulting from Jack Joy's leg deformity.

Based upon the above evidence the jury returned a verdict in favor of Dr. Chau and against both Joys.

The appellants present the following issues for our review:

1. Did the trial court err by giving the defendant's instruction number 2 to the jury?

2. Did the trial court err by giving the court's final instructions numbers 4, 5 and 6?

3. Did the trial court err in refusing plaintiffs' instruction number 9?

4. Did the trial court err by refusing to give plaintiffs' instruction number 11?

I.

The first issue for our review concerns the propriety of the giving of defendant's instruction number 2. That instruction, in essence, stated that a physician is not bound to use any particular method of treatment; if, among physicians and surgeons of ordinary skill and learning, more than one method of treatment is recognized, it is proper for a doctor to adopt any recognized method of treatment. The instruction went on to say that the fact that another method of treatment existed, or that another physician would have used a different method does not establish negligence.

The first of the three objections to the above instruction asserts that it was an erroneous statement of the law and that it eliminated any duty of care which Dr. Chau may have owed Joy. The chief objection to the instruction appears to be that the jury was not informed that it must consider the facts and circumstances of this particular case in determining if Dr. Chau selected an appropriate method of treatment. While it may not be explicit in the instruction, it is implicit that the jury is to consider the evidence presented and thereby judge the acts of the treating physician in the particular setting of the case. All the evidence in the record pertained to Joy's treatment, or to treatment of injuries similar to Joy's; it is therefore proper to assume that the jury would use the instructions as a guide for reviewing the facts and circumstances which had just been presented to it during the trial. The instruction informed the jury that a physician is not bound to use one particular method of treating a patient when more than one method is recognized by the profession. This is a correct statement of the law. This rule of law was stated in Board of Medical Registration and Examination v. Kaadt (1948), 225 Ind. 625, 76 N.E.2d 669, as:

"A physician is not limited to the most generally used of several approved modes of treatment and the use of another mode known and approved by the profession is proper, . . . " This rule was reaffirmed in the recent case of Brook v. St. John's Hickey Mem. Hosp. (1977), Ind.App., 368 N.E.2d 264. While it is true that three of the expert witnesses expressed grave doubts about the treatment rendered to Joy's right leg, an additional expert testified that the treatment was appropriate considering all the surrounding facts and circumstances. The jury was therefore presented with conflicting opinions and evidence and was correctly instructed as to the duty of a physician in selecting his method of treatment.

The appellants' second assertion of error based on instruction number 2 contends that it is in conflict with the court's final instructions 4, 5 and 6 and with the plaintiffs' instructions 1 and 10 (both of which were given by the trial court). It is the appellants' contention that the instructions are in such conflict as to mislead the jury as to the applicable law. We must disagree. It is elementary that the instructions to the jury must be viewed as a whole and construed in harmony with each other, and it is not necessary for any one instruction to contain all the law applicable to the case. Evans v. Breeden (1975), Ind.App., 330 N.E.2d 116. When construed together the instructions are complimentary and not contradictory. They establish the duty owed to the plaintiff and the standard of care which Dr. Chau was required to maintain. The instructions further properly limited the evidence which the jury could consider in determining if Dr. Chau had breached the duty which he owed Joy.

Finally, the jury was instructed that it must construe all the instructions as a whole and in harmony, and consider the evidence in light of the instructions. When they are read as a whole, we can find no conflict in the instructions and therefore no prejudicial error which could have misled the jury. Birdsong v. ITT Continental Baking Company (1974), 160 Ind.App. 411, 312 N.E.2d 104.

The Joys next contend that the giving of the court's final instructions 4, 5 and 6 constituted reversible error. The common themes of the objections to each of the three instructions are as follows: first, the applicability of the "locality" rule in assigning the standard of care which Dr. Chau was required to maintain; and, secondly, the instructions referred to a doctor and not an orthopedic surgeon.

The appellants are correct in their assertion that each of the three instructions referred to the...