A trial lawyer provides his perspective on the issue

A commentary in the Journal of the American Medical Association (June 20, 2007) discussed the merits of a national standard of care versus a locality standard of care. The authors advocated eliminating locality standards in favor of a national standard of care. They asserted that “[t]he purpose of medical malpractice law is to protect patients from substandard medical care and to compensate them for injuries sustained as a result of substandard care. Each medical malpractice case serves an additional function by further delineating the medical care that is legally acceptable in a particular field.”

From my perspective of 30-plus years defending medical malpractice cases, I believe that the only readily apparent part of this assertion is that medical malpractice law can serve to compensate those who have been injured by allegedly substandard care. I certainly find little support for other assertions made by the authors, such as that medical malpractice law has significantly improved the quality of care in the community or that physicians explicitly include the threat of a lawsuit as part of their decision calculus when providing patient care.

Whether medical malpractice law has created any type of general and ascertainable delineation of the medical care that is legally acceptable in any particular medical field is also unsupported. In fact, as long as medical liability cases are ultimately decided by lay jurors who consider and weigh the testimony of competing experts, I would argue that it is quixotic to expect the legal system to provide anything approaching generally applicable standards or guidelines of the “medical care that is legally acceptable in a particular field.”

This is not to suggest that there is any general crisis in the jury system. Rather, the suggestion is that the tort system is not, and should not be expected to be, a means or mechanism to improve the general quality of medical care by establishing standards of medical practice. Thus, while a jurisdiction’s use of local or national standards of care certainly has legal significance in the defense of medical liability cases, it may have relatively little significance in influencing actual case outcomes and even less significance in terms of improving patient care in general.

Experts and standards
Almost every medical liability case is decided upon testimony of expert witnesses (physicians) after the jury determines which expert or set of experts it believes has accurately and most convincingly set forth the standard of medical care to be expected of the defendant physicians. Depending upon the jurisdiction, these experts must base their support or criticism upon either the conduct to be expected of a physician “in general” (a national standard) or in a particular geographic area or type of community (a locality standard).

Most jurisdictions (29 states and Washington, D.C.) use a national standard of care. However, a significant minority (21 states) uses some version of a locality standard of care.

Georgia, where I practice, uses a national standard of care—the care expected of physicians in general. Since 1863, under state law, a physician “must bring to the exercise of his profession a reasonable degree of care and skill.” Georgia courts have further refined and interpreted this “reasonable degree of care and skill” expected of physicians and held it to mean that degree of care and skill “which, under similar conditions and like surrounding circumstances, is ordinarily employed by the profession generally.” Evidence regarding local standards or practices is generally inadmissible as is evidence of the personal medical practices and opinions of physicians.

The one instance in which Georgia applies a type of locality rule in medical liability cases is when a hospital is sued and it is alleged that the hospital has provided substandard care in its facilities. For all intents and purposes, the exception is limited to the provision of facilities and equipment and does not extend to the acts and/or omissions of employees and agents of hospitals whose negligence is imputed to the hospital entity by virtue of the employee-employer relationship. Thus, a hospital in rural Georgia is not held to the same standards as to the provision of facilities and equipment as a hospital in a metropolitan area. Instead, the rural hospital must exercise such ordinary care in its provision facilities and equipment as hospitals in similar localities within Georgia.

Are national standards better?
The national standard of care is sometimes seen as being superior to locality rules in two primary ways. A national standard of care, it may be argued, improves medical care by helping to establish better and uniform standards of physician practice. Second, the national standard is claimed to be ultimately fairer to both physicians and patients. Physicians benefit from being held accountable to only one standard, therefore eliminating the need to choose between following local practice standards and national standards. Because meritorious lawsuits might not be brought in jurisdictions that adhere to locality standards (due to an inability to find local expert witnesses willing to testify against their fellow physicians), patients might also benefit from a national standard.

While this position certainly has merit, I would argue that it ultimately places too much importance upon the issue of a national versus a local standard of care. If a national standard does improve medical standards of care, one reasonable consequence might be a decline in the number of medical liability lawsuits. Whether one considers tort reform efforts to be an indication of the failure of medical malpractice law, a reflection of a general decline in the quality of medical care, or a response to the harmful proliferation of medical malpractice suits, it is worth noting that recent tort reform efforts appear to predominate in jurisdictions that adhere to a national standard.

Likewise, the assertion that physicians must choose between local and national standards is premised upon the following assumptions: that the local and national standards in fact differ and that physicians incorporate the risk of suit inherent in using the local or national standard in making patient-care decisions. As a medical malpractice defense attorney, I can state that rarely (if ever) has a physician explained the care provided to a patient as designed to limit exposure to liability. Physicians deliver the care that they deem to be the best possible care for their patients under the circumstances.

The argument that the locality standard itself is inherently unfair to patients is clearly suspect. In my experience, “at-large” experts, who would be quite willing to become “educated” on local standards and travel to testify, are plentiful. It is the evidentiary rules that define the competency of expert witnesses in a jurisdiction and provide that experts must be licensed or actually practice in the same state or locality as the physician whose care is being challenged in court, not the locality standard, which may be unfair to patients.

Impact of evidentiary rules
In this regard, the stigma attached to a physician who testifies against a fellow physician in the same locality may today only exist in the most limited and narrowly defined localities. Georgia physicians provide standard of care testimony against other Georgia physicians; physicians from a metropolitan area provide standard of care testimony against other physicians in the same area.

To the extent that a hesitancy still exists in small-town America, it would seem to be a major limiting factor for patients only in jurisdictions where evidentiary rules require expert testimony from physicians residing in the same limited and particular locality. Evidentiary rules requiring experts to be licensed in the same state and versions of the locality standard requiring experts to be familiar with standards of care in the same state or in similar localities, for example, would seem to have little impact upon a patient’s ability to prosecute an otherwise meritorious medical practice claim.

C. Jerry Willis, JD, is a senior partner in the firm of Willis McKenzie LLP in LaGrange, Ga. He prepared this article at the request of the AAOS Medical Liability Committee.

Editor’s note: The information contained in this article is intended for general information purposes and is not legal advice, nor should it be interpreted as such. For legal advice, consult an attorney.

Articles labeled Orthopaedic Risk Manager are presented by the Medical Liability Committee under the direction of contrib­uting editor Douglas W. Lundy, MD. E-mail your comments to feedback-orm@aaos.org or contact this issue’s contributors directly.

References:

Lewis MH, Gohagan JK, Merenstein, DJ The Locality Rule and the Physician's Dilemma, JAMA: June 20,2007; 297 (23): 2633-7.

Eaton TA, Talarico SM, Dunn, RE. Another Brick in the Wall: An Empirical Look at Georgia Tort Litigation in the 1990s, 34 GALR 1049, 1094-1095.

Taragin MI, Willett LR, Wilczek AP, Trout R, Carson JL. The influence of standard of care and severity of injury on the resolution of medical malpractice claims. Ann Intern Med. 1992 Nov 1; 117(9): 780-4.