Question: An injured patient alleges that her eye doctor was negligent in failing to adhere to national treatment guidelines and in not using modern medical equipment. The encounter took place in a rural setting, with the nearest hospital 100 miles away.

In her malpractice lawsuit, which of the following choices is incorrect?

A. One of the doctor’s defenses may be the locality rule.

B. The plaintiff’s strongest argument is that community standards should parallel national standards for a specialist doctor such as an ophthalmologist.

C. Her expert witness must be a practicing ophthalmologist from the area.

D. The expert must be familiar with the local standards but does not have to practice there.

E. It all depends on what the state statute says, because the locality rule is not uniform settled law.

Answer: C. In traditional medical tort law, courts would rely on the standard of the particular locale where the tortious act took place, the so-called locality rule. This was based on the belief that different standards of care were applicable in different areas of the country, e.g., urban vs. rural. The rule can be traced to Small v. Howard, 1 an 1880 Massachusetts opinion, which was subsequently overruled in 1968.

Factors favoring the trend away from a local standard toward a national standard include conformity in medical school and residency curricula, and prescribed board certification requirements. Internet access and telemedicine have further propagated this uniformity. Finally, two additional facets of modern medicine – continuing medical education and published clinical practice guidelines – are at odds with a rule geared toward local standards.

One argument against the locality rule is that undue reliance on an outdated mode of practice will perpetuate substandard care. In an older New York malpractice case where a newborn became blind, the pediatrician cited local custom to defend the prolonged use of oxygen to treat preterm infants, despite evidence that this practice might have serious consequences. However, the court of appeals held that the pediatrician’s superior knowledge of the increased risk of hyperoxygenation should have enabled him to use his best judgment instead of relying on the indefensible local custom.

Under a strict version of the locality rule, otherwise qualified expert witnesses may be excluded if they are not practitioners in the locale in question. Still, some courts may allow out-of-state experts to offer their opinions. This has been especially helpful to plaintiffs who are far less likely to be able to secure willing local experts, given the reluctance of many physicians to testify against a fellow doctor in their community.

Take Tennessee as an example. It once excluded the expert testimony of an orthopedic surgeon from Johnson City because the expert witness testified about the national standard and did not have actual knowledge of the standard of care in Nashville, the community where the alleged malpractice occurred.

The Tennessee Court of Appeals later ruled that expert witnesses had to have “personal” or “firsthand knowledge” of the community standard of care, and that interviewing other physicians in the area did not suffice. It subsequently clarified that an expert witness need not actually practice in the same or similar locale, and that professional contact with physicians from comparable communities, such as through referrals, would be acceptable.

Two well-known cases touching on the locality rule bear summarizing: In Swink v. Weintraub, 2 Mrs. Swink bled into her pericardium during repair of a defective pacemaker electric lead. She died as a result, and her family pursued a wrongful death action, alleging negligence including delayed pericardiocentesis and surgical intervention.

The jury returned a verdict for the plaintiff, awarding damages in the amount of $1,047,732.20. On appeal, the defendants argued that North Carolina’s locality rule extended to all aspects of a negligence action, and that the trial court erred in admitting expert opinions without regard to whether those opinions reflected the “same or similar community” standard of care.

But the court of appeals disagreed, emphasizing that compliance with the “same or similar community” standard does not necessarily exonerate a defendant from an allegation of medical negligence. The court said liability can be established if the defendant did not exercise his “best judgment” in the treatment of the patient or if the defendant failed to use “reasonable care and diligence” in his efforts to render medical assistance.

In McClure v. Inova Medical Group, a Virginia jury found that a family practice resident had failed to meet the Virginia community standard of care when he did not order the prostate-specific antigen (PSA) test in a 53-year-old patient who was subsequently diagnosed with prostate cancer. The doctor had discussed the risks and benefits of PSA testing, but the patient declined taking the test. Jurors sided with the plaintiff’s argument that according to the local or statewide standard, Virginia doctors simply ordered the test as a matter of routine for men older than 50 years without necessarily discussing risks and benefits. The court awarded $1 million to the patient.3

Although the majority of jurisdictions have abandoned the locality rule, several continue to adhere to either a strict or modified version.4 Examples are Arizona, Idaho, New York, Tennessee, Virginia, and Washington. A modified rule exists in Louisiana, which holds general practitioners to a community standard and specialists to a national standard.

Finally, many authors have recommended a narrowly constructed rule based not on geographic boundaries, but on the availability of local resources. Courts would then look at the totality of circumstances, but remember that there is always the duty to refer or transfer to an available specialist/facility – and that the failure to do so may form the basis of liability.

As one physician put it: Location should not come into play with respect to the knowledge or skill of the treating physician; and even if a physician may not have the facilities to perform an emergency cesarean section, he or she should still know when it’s called for.

References

1. Small v. Howard, 128 Mass 131 (1880).

2. Swink v. Weintraub, 672 S.E.2d 53 (N.C. Court of Appeals 2009) .

3. JAMA. 2004 Jan 7;291(1):15-6 .

4. JAMA. 2007 Jun 20;297(23):2633-7 .

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at siang@hawaii.edu.

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