Monday, November 3, 2014
Guest Blogger Assistant Professor Marc D. Ginsberg: The Locality Rule And A National Standard Of Care
Familiarity with the “standard of care” applicable to physician-defendants in medical negligence litigation undoubtedly arose in our law school study of tort law. When the care and treatment provided by a physician complies with the “standard of care,” the medical services rendered are consistent with the care required of a reasonably well qualified physician in the same or similar circumstances. Modern medicine, with the assistance of technology, improved facilities and (hopefully) universal access to medical knowledge, no longer resembles medicine in the 1800’s. It was in the 1800’s that the “locality rule” originated. The case of Small v. Howard, 128 Mass. 131 (1880), overruled by Brune v. Belinkoff, 235 N.E.2d 793 (Mass. 1968), is thought to be the origin of the rule. The locality rule placed a geographical aspect on the medical standard of care, requiring a physician to comply with the standard of care applicable in a particular locality or community. The rule “protected” the rural physician, who would not have had access to the resources and knowledge of the urban physician.
I was surprised to learn that vestiges of the locality rule remain, and I discussed this topic in my 2013 paper, “The Locality Rule Lives! Why? Using Modern Medicine To Eradicate An Unhealthy Law,” 61 Drake Law Review 321 (2013). Modern medical education, licensure, board certification, continuing medical education and practice guidelines have a national focus and are inconsistent with the locality rule. Additionally, technological advances have created opportunities for physicians to participate in care provided across the country.
The practical complication of the locality rule is the burden it places on plaintiff’s counsel to secure an expert witness to testify that a defendant-physician violated the standard of care. In a locality rule state, it may be difficult to find a local expert to testify against a colleague. Similarly, it may be difficult to locate an out-of-state expert who is familiar with the local standard of care. There is simply no reason for the survival of the locality rule. It is out of step with mainstream medicine.