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From the January 31,
2005 North Carolina Lawyers Weekly.
Back to the Horse and Buggy Days: North Carolina
Courts Harken A Return To The 'Locality Rule' In Medical
Malpractice Cases
In the seminal case of
Wiggins v.
Piver, 276 N.C. 134, 171
S.E.2d 393 (1970), the North Carolina supreme court rejected the
so-called "locality rule" in favor of the more liberal "same or
similar communities" standard presently used to measure the
performance of health care providers in medical malpractice
cases. In a remarkable turn of events, recent decisions of the
North Carolina courts augur a return to the locality rule, or
some variant of it, and reveal that, like the reports of Twain's
death, the demise of the locality rule pronounced in
Wiggins was greatly
exaggerated.
The Locality Rule
Under the locality rule the performance of
physicians and other providers was judged by the standards
existing in the community where the malpractice occurred.
As a corollary to the rule, only physicians who
had personal familiarity with that community were permitted to
testify as experts in the case. The shortcomings of the rule,
and the predicament in which it placed lawyers who represented
injured patients are obvious: in 1950 North Carolina, how likely
was the prospect that a physician in Pittsboro would testify
against his colleague? Not very. As a result, it was very
difficult, and frequently impossible, to find experts who were
willing or able to testify in malpractice cases.
Rejection Of The Locality Rule
By 1970, the cultural milieu that spawned the
locality rule had become a thing of the past. As the Wiggins
court observed, the locality rule "had its origin in the
very old and far away days when there were many little
institutions which called themselves medical schools," a time
when "students were admitted who could show a high school
diploma or furnish a certificate from a school principal that
the bearer had completed the 'equivalent' of a high school
course of study." Moreover, the court observed, in "many rural
communities... the doctor was on his own. Frequent refresher
courses, now generally attended, were unknown." Sensitive to the
professional limitations of the proverbial "country doctor" many
jurisdictions, including North Carolina, deemed it unjust to
subject the care rendered in rural areas to the standards of
practice prevailing in urban communities.
Among the factors cited by
Wiggins as grounds for
rejecting the archaic rule were "changes in the rural-urban
population pattern of the country and changes in medical
education, training, and communication," factors that had led to
an increase in the "standardization of medical practices." The
Wiggins court
concluded that, given the increasing uniformity of education,
experience and training among health care professionals, the
locality rule had "lost all potency."
In rejecting the locality rule,
Wiggins held that experts
were competent to testify on standard of care issues as long as
they were familiar with the standard of practice in similar
localities. Following
Wiggins, the North Carolina General Assembly enacted N.C.
Gen. Stat. Sect. 90- 21.12 in 1975, thus codifying the "same or
similar communities" standard that presently governs North
Carolina malpractice cases.
Application Of The Same Or Similar
Communities Standard Following Wiggins
The
Wiggins decision, and the rulings of the North Carolina
appellate courts that appeared in its wake, marked a clear and
steady course away from the precedential baggage of the locality
rule. Taken together, these decisions reveal a charitable
jurisprudence that tended to err on the side of inclusion when
issues of "familiarity" and "similarity" were in doubt; a
jurisprudence that exalted substance over form, and one that
seems lavishly liberal in light of recent opinions addressing
these same issues.
In Wiggins
itself, the issue was whether the defendant physician, who
practiced in Jacksonville, properly performed a series of
biopsies on the patient. The trial court excluded the testimony
of the plaintiff's expert on the basis that he was not familiar
with the standards of practice in Jacksonville. In ruling that
the expert should have been permitted to testify, the court
observed that the surgical procedure at issue "would seem to be
as simple and uncomplicated as any cutting operation one may
imagine. Reason does not appear to the non-medically oriented
mind why there should be any essential difference in the manner
of closing an incision, whether performed in Jacksonville,
Kinston, Goldsboro, Sanford, Lexington, Reidsville, Elkin, Mt.
Airy, or any other similar community in North Carolina."
In the years following
Wiggins, the North Carolina
courts continued to distance themselves from the locality rule.
In Dickens v.
Everharl, 284 N.C. 95,199
S.E.2d 440 (1973), the court held that the plaintiff's expert
witness should have been permitted to testify based on his
familiarity with communities in California that were similar to
Mt. Airy, notwithstanding his total lack of familiarity with the
standards of practice in Mt. Airy. Similarly, in
Page v.
Wilson Memorial Hospital, 49
N.C. App. 533,272 S.E.2d 8 (1980), the court allowed a nurse who
had taught and worked at hospitals in Greenville, Rocky Mount,
Williamston and Washington to testify regarding the standards of
practice in Wilson County because the witness had worked in
"adjoining and nearby communities."
In Howard v. Piver, 53 N.C. App.
46, 279 S.E.2d 876 (1981), the plaintiff's expert testified at
trial that he was familiar with the standard of care for
physicians and surgeons in Jacksonville and similar communties.
On cross examination, however, the expert conceded that he had
never been inside the hospital where the negligent care
occurred, did not know any doctors in Jacksonville, and had
never practiced outside of Chapel Hill. The court held that,
notwithstanding this evidence, the expert's education, training
and experience qualified him to render opinions regarding the
standards of practice in Jacksonville. In so holding, the court
noted that "the horse and buggy days are gone," and with it the
geographical focus of the locality rule. Given the relative
simplicity of the medical issues (discontinuance of anti-seizure
medication), the trial court's emphasis on locality made little
sense:
"The treatment of epilepsy with anti-seizure
medication is a long-established practice. Plaintiffs underlying
thesis in this case is that [the defendant] should not have
discontinued her medication which she had taken for thirty years
to control her seizures and that discontinuation of her seizure
medication would predictably precipitate seizures. Reason does
not appear in this case, considering the nature of the medical
question involved, why a different standard should apply to the
discontinuation of anti-seizure medication in Jacksonville, in
Kinston, in Goldsboro, or even in Chapel Hill."
The court concluded that, "when there are no
variations in the standards for handling of a particular medical
problem from one community to another, a medical expert familiar
with the standard and with the defendant's deviation from the
standard" should be permitted to testify.
Similarly, in
Rucker v. High Point Memorial
Hospital, 285 N.C. 519, 206 S.E.2d 196 (1974), the plaintiff alleged that he received negligent
treatment for a shotgun wound while he was a patient at High Point Memorial Hospital. Plaintiffs
expert witness testified that the standards of practice for treating gunshot wounds at accredited
hospitals were uniform and standardized across the country. In allowing the testimony the court
held that "in this case." we are not dealing with a local country doctor. We are dealing with a duly
accredited hospital and a member of its staff who was in charge of its emergency department"
In support of its decision the court cited testimony from the expert indicating that there
was "no difference in the standards of treatment of gunshot wounds to the lower extremities in
the hospitals" where he had practiced, and that based on his "attendance in seminars, reading of
publications...academic affiliations... travels... speaking with other doctors [and] keeping up
with the literature," he could comfortably testify that the standards for treating gunshot wounds "were
the same around the United States" and that "there [was] no difference in the standards."
The court observed that the treatment of gunshot wounds was not the kind of medical procedure
that invited geographical nuance or variation:
"Sound reason supports the view that gunshot
wounds of the lower leg lend themselves most readily to uniform medical and surgical
treatment without regard to locality. Not all injuries are so uniform and the treatment so generally well
known and followed. The medical profession in Alaska, for example, would be informed and
knowledgeable on the treatment of snow blindness, frozen feet and frostbitten lungs, but they
would be without experience in the treatment of rattlesnake bites. A Florida doctor would know
about the snake bites, but not about frozen feet A gunshot would would require the same treatment
in Florida or Alaska."
Narrowing The Standard
A conspicuous narrowing of the same or similar
communities standard began with the decision of
Henry v. Southeastern OB-GYN,
145 N.C. App. 208,550
S.E.2d 245, disc. rev.
denied, 354 N.C. 570, 557 S.E.2d 530 (2001). In Henry, the witness, a
physician in Spartanburg, South Carolina, testified that he was familiar with
the standards of practice in Spartanburg, and also testified that he believed that standard would
be the same as the standards prevailing in Durham and Chapel Hill.The
witness did not profess, however, to any specific familiarity
with the standards of practice in Wilmington, where the
malpractice occurred. In rejecting the testimony of the expert, the court held that "the concept
of an applicable standard of care encompasses more than mere physician skill and training;
rather, it also involves the physical and financial environment of a particular medical community."
In addition to its focus on the physical
characteristics of the communities being compared, the
Henry decision is remarkable for the
resounding fashion in which it rejected application of a national standard of care to the treatment at
issue. Sidestepping the holdings in cases such as
Howard and
Rucker, and citing a
20-year-old law review article, the court held that application
of a uniform standard of care would be reserved for
the simplest and most pedestrian procedures, citing as examples the changing of bedpans and
the monitoring of vital signs.
The Court of Appeals moved even closer to the
locality rule in
Smith v.
Whitmer, 159 N.C. App. 192, 582 S.E.2d 669 (2003). In Smith the expert,
who practiced in Abingdon, Virginia, testified that he was familiar with the standard of care
for orthopedic surgeons practicing in Tarboro and Rocky Mount, where the defendants practiced, that
he had taken steps to
familiarize himself with Rocky Mount and Tarboro, that those communities
seemed similar to Abingdon, and that given the relative simplicity of the orthopedic
procedure at issue, there was no significant degree of variation between the way the procedure was
performed across the country. Upon questioning by the defense, the expert conceded during his
deposition that he was not licensed to practice in North Carolina, had never visited Tarboro or
Rocky Mount, and had no "affiliation" with any physicians practicing in those communities.
Following the deposition, the defendants filed a motion to exclude the expert's testimony on the
grounds that the expert was not familiar with the standards of care and practice in Rocky Mount
and Tarboro. The trial court granted the motion.
The court of appeals affirmed. The court held
that, while "it is not necessary for the witness testifying as to the standard of care to have
actually practiced in the same community as the defendant... the witness must demonstrate that
he is familiar with the standard of care in the community where the injury occurred, or the
standard of care in similar communities." Breaking new legal ground, the
Smith court did not accept
the expert's claims of familiarity with Rocky Mount and Tarboro, and scrutinized the basis of
the claim in excruciating detail. The court held that although the expert "asserted that he was
familiar with the applicable standard of care, his testimony is devoid of support for this
assertion." In support of its decision, the court cited as relevant the expert's inability to recall during
his deposition the specific points of similarity between Abingdon and the communities in
question, his failure to speak to health care practitioners in those communities prior to
testifying, and the fact that he had never personally visited Tarboro or Rocky Mount.
Most recently, in Pitts v. Nash Day Hospital, 2004 N.C. App. LEXIS (December 7,2004),
the Court of Appeals inched even closer to the
locality rule. Although the
Pitts court reversed the trial court's exclusion of the plaintiffs
witness, the court emphasized as never before the degree to which specific community traits will be
analyzed to determine whether given communities are, as a matter of law, similar. For example, the
court held that factors to be considered include the communities' facilities, equipment, and physical
and financial environment. In an extraordinary dissent, Judge Steelman suggested that the
inquiry should go even further. Judge Steelman wrote that factors such as population,
industrial base and funding should be considered in determining whether an expert's claims of
similarity should be accepted at face value, as well as the degree to which such factors impact the
resources available to caregivers in the communities being compared. While most of these
factors had been cited in prior cases in various contexts, never before Pitts had they been presented
as a laundry list of demographic traits that could be invoked to challenge an
expert's claims of familiarity and similarity.
What Does The Future Hold?
The North Carolina courts have done a full
about-face in the 34 years since
Wiggins. Wiggins
and its immediate progeny recognized that
improvements in medical training, equipment and resources had obviated the locality rule. These
rulings reflected an appreciation that, with the exception of novel and experimental procedures,
it made little sense to confine the pool of experts to physicians having personal knowledge
of the community at issue. Among other things, these decisions reflected a willingness
to expand the types of procedures for which a national standard would be recognized, reserving
the preoccupation with locality for those techniques whose standards of practice truly
varied from community to community.
In the cases since Henry our courts have
exhibited a revived obsession with locality. Among other things, these "hard look" decisions cast a
suspicious eye at outlanders who claim familiarity with the communities of North
Carolina, and make clear that any expert who applies a national standard of care in reaching his
conclusions will be excluded unless the procedure at issue is something on the order of a diaper
change. Given the increasingly draconian decisions coming out of Raleigh, and the heightened focus
on community features such as physical environment, industrial base and financial
capacity, the time may soon come when plaintiffs will be forced to designate urban planners,
demographers, sociologists and public health experts to opine that the community where the malpractice
occurred is in all material regards similar to the communities where their experts practice.
So what is to be done? The answer is simple, but
controversial: the time has come to scrap the same or similar communities standard altogether.
Indeed, it is long overdue.
Talk to the experts. Doctors marvel at the
absurdity of the standard. The reason? The standard distorts reality and does nothing to advance the
quest for medical truth. As any candid physician will concede, except for the most exotic
procedures and techniques, the standards of practice in Wilmington are no different than the standards of
practice in Milwaukee, Hartford, Baltimore or a thousand other communities across the country.
Standardized medical education, geographical mobility within the medical profession, a
nationwide hospital accreditation program, national boards of certification for medical specialties, and revolutionary improvements in
communication and information exchange have rendered the same or
similar communities standard obsolete. Stripped of its historical rationale, the same or
similar communities is simply an artifact of a by gone era, an anachronism that is
useful today only as a pretext for excluding qualified experts.
Make that qualified
plaintiff's experts. While
the reasons underlying the recent trend of judicial recidivism might be debatable, one thing is
beyond dispute: injured patients are bearing a disproportionate share of its wrath. It is
telling that, of the dozens of appellate cases that have interpreted the same or similar communities
standard over the past 34 years,
not one has affirmed or resulted in the exclusion of a
witness for the defense.
The reason for this disparity? The conspiracy of
silence among physicians has never been stronger. Finding a physician in New Bern who is
willing to testify against his cross-town colleague is about as likely as succeeding on a
Woodson claim. In most
cases, defendant physicians can rely upon their colleagues to
testify on their behalf or, if not, a physician from a similar community within the state. Plaintiffs,
on the other hand, always have to look for experts beyond the community where the malpractice
occurred, and almost always have to recruit outside the state. As a result, plaintiffs are
usually the only parties in a malpractice case who are forced to shepherd experts through the same or
similar communities minefield.
And that is no easy task. Getting an expert to
trial can be difficult when the expert lives in Pittsburgh, has never visited Kinston, and
cannot understand why botching an appendectomy in Kinston has to be different than botching the
same procedure in Pennsylvania. Making things even more perilous, any misstep along the way
can spell disaster. Recent cases instruct that the merest lapse in syntax or failure of recall
during a deposition can be invoked as a basis for excluding your witness. And there seems to be no
relief in sight.
Given the trend of recent decisions, the best
hope for resolving this scandal lies with the legislature. In the meantime, qualified and
competent experts will continue to be excluded when they trip over questions regarding the
industrial base of Burlington, or forget how many accredited hospitals lie within forty miles of
Hillsborough, or cannot recall the per capita income of Wadesboro, or have trouble articulating why
the standard for transfusing a patient is the same in San Diego as it is in Charlotte without
suggesting that the standard of care for the procedure is uniform across the country.
Of course the ultimate consequence of this trend
is that, although 34 years have passed since
Wiggins, it is now more difficult than ever
to escort a meritorious medical malpractice case to trial in North Carolina.
And, perhaps, in that ineluctable truth lies the
method beneath the madness.
Mark McGrath
John Jensen
Mark
McGrath
George Podgorny, Jr.
Jensen McGrath Podgorny, PA
www.JMPAttorneys.com
Info@JMPAttorneys.com
430 Davis
Drive, Suite 250
Research
Triangle Park,
NC
27709
(919)
433-4480 (tel.)
(919)
433-4485 (fax)
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