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AAOS Now

Published 3/1/2013
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Marc D. Ginsberg, JD, LLM

The “Persistent” Locality Rule

Outdated law imposes geographic dimension on the standard of care

The concept of standard of care is familiar to physicians who have been participants in medical negligence cases as defendants or expert witnesses. Trial testimony relating to deviation from, and compliance with, the applicable standard of care is often key in determining whether medical negligence occurred.

The standard of care against which the conduct of a defendant-physician is measured in medical negligence litigation typically requires the physician to act as a reasonably well-qualified physician would act in the same or similar circumstances. In today’s era of accessible medical knowledge, nationally influenced medical education, postgraduate training, board certification, continuing medical education, evidenced-based medicine, and practice guidelines, one might assume that the conduct of a defendant-physician invariably must be judged by a national standard of care.

That assumption, however, would be misplaced. A small minority of states continues to use the stricter “locality rule,” which imposes a geographic dimension on the standard of care.

A “local” dilemma
The locality rule requires a defendant-physician to provide the same degree of skill and care that is required of a physician practicing in the same or a similar community. The imposition of the locality rule, however, potentially creates two problems.

First, although it is highly unlikely, all of the physicians in a locality rule jurisdiction could practice substandard medicine. Individually and collectively, those physicians could comply with local standards of care that are inconsistent with national standards.

In addition, locality rule jurisdictions create a serious obstacle to patients who seek to pursue medical negligence claims. It is difficult to engage an expert-witness physician from a community to testify against another physician in the same community. An expert-witness physician from a different state (or community) might be barred from testifying against the defendant-physician because the expert would not be conversant with the local standard of care. Therefore, locality rule jurisdictions effectively protect local physicians from adverse expert testimony that is required to prove the elements of a medical negligence claim.

Locality rule jurisdictions can create a problem for defendant-physicians as well. The medical negligence defendant will retain an expert witness to testify that the defendant complied with the applicable standard of care. Therefore, the defense expert must have knowledge of the local standard of care.

Abandon the rule
The origin of the locality rule is often attributed to Small v. Howard, an 1880 opinion of the Supreme Judicial Court of Massachusetts that endured until overruled by that Court in 1968. The locality rule may have had merit in the early days of American medicine, when access to medical knowledge, facilities, and experience was, at best, uneven. Now, the locality rule is out of step with modern medicine and should be abandoned.

Idaho, Tennessee, New York, Virginia, Arizona, and Washington retain either a strict or somewhat modified version of the locality rule. By statute, Idaho is likely the most strict locality rule state, because it also requires evidence that an Idaho physician deviated from the standard of care applicable in the community in which care was provided. Tennessee’s version of the locality rule was a recent subject of review by the Tennessee Supreme Court.

Defendant-physicians no longer need or deserve the protection offered by the locality rule. Medical schools operate in all locality rule states, except Idaho. Board-certified physicians practice medicine in all of the states maintaining the locality rule. The board certification exams, administered by the member boards of the American Board of Medical Specialties, are national in scope.

Undergraduate medical education and the board certification process are not the only aspects of modern medicine that are inconsistent with the locality rule. The accreditation of allopathic medical schools in the United States is granted by the Liaison Committee on Medical Education (LCME) through compliance with national standards. The Accreditation Council for Graduate Medical Education (ACGME) accredits all U.S. clinical residency and fellowship programs. A state-by-state medical licensure process is available to graduates of LCME-accredited schools who have also trained in ACGME programs and who have successfully completed the U.S. Medical Licensing Exam.

Finally, two additional facets of modern medicine—continuing medical education and clinical practice guidelines—are incongruous with the locality rule. The Accreditation Council for Continuing Medical Education (ACCME) accredits organizations that provide continuing medical education, which often has a national focus. Professional medical associations promulgate practice guidelines. Practice guidelines are intended to identify best practices and may be recognized by physicians and courts as the standard of care, even though the professional medical associations that develop them are voluntary membership organizations and do not grant degrees, licensure, or board certification.

The conduct of physician-defendants should be measured by the national standard of care—the exercise of that degree of care required of a reasonably well-qualified physician under the same or similar circumstances. This standard is broad enough to recognize challenges that might present to the physician with limited access to resources based on geography.

Marc D. Ginsberg, JD, LLM, is assistant professor, The John Marshall Law School, Chicago. He can be reached at 9ginsberg@jmls.edu

Editor’s Note: Articles labeled Orthopaedic Risk Manager (ORM) are presented by the Medical Liability Committee under the direction of David H. Sohn, JD, MD, ORM editor.

Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional.

Email your comments to feedback-orm@aaos.org or contact this issue’s contributors directly.

References

  1. 128 Mass. 131 (1880).
  2. Brune v. Belinkoff, 235 N.E.2d 793 (Mass. 1968).
  3. Idaho Code Ann. §§ 6-1012, 6-1013.
  4. Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011).
  5. Overview: Accreditation and LCME, Liaison Committee on Medical Education, http://www.lcme.org/overview.htm.
  6. LCME, Functions and Structure of a Medical School: Standards for Accreditation of Medical Education Programs Leading to the M.D. Degree (May 2012).
  7. Lurie et al, Measurement of the General Competencies of the Accreditation Council for Graduate Medical Education: A Systematic Review, 84(3) Acad. Med. 301 (Mar. 2009).
  8. Thompson, The Future of Medical Licensure in the United States, 81 (12) Acad. Med. 536 (Dec. 2006).
  9. ACCME, The Accreditation Council For Continuing Medical Education At Work: Accreditation, Recognition, Education, Operations, And Governance, 5 (May 19, 2011).
  10. See Furrow, Greaney, Johnson, Jost & Schwartz, Health Law, § 6-2, pg. 264 (2nd Ed. 2000).