provider is not in accordance with the standards of practice among members of the same health care pro- fession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action. This provision appears to recognize that a defendant’s acts and omissions should be measured not only by the prac- tices of other physicians with similar training and experience, but also by the practices of physicians situated in the same or similar communities. To avoid any problems at trial, lawyers should con- firm that all experts offering standard of care testimony are familiar with the stan- dard of care in the location where the malpractice occurred or in similar com- munities. During discovery it also may be possible to obtain admissions from the defense experts that national standards of care apply to the diagnosis, management, and treatment of the maternal, fetal, or neonatal conditions that led to the child’s brain damage or death. The Court of Appeals recently cited
both Shilkret, and §3-2A-02(c) with ap- proval, stating that a plaintiff must show that the doctor’s conduct, namely, the care given or withheld by the doctor, was not in accordance with the standards of practice among members of the same health care profession with similar training and expe- rience situated in the same or similar communities at the time of the act or omis- sion giving rise to the cause of action.11 Nowhere did the Court suggest that the legislature intended to substitute a local standard of care to replace the national stan- dard of care, nor did it find it necessary to clarify how the phrase “same or similar com- munities” should be defined. Thus, it may be assumed that, except for very specific cir- cumstances when the unavailability of equipment, services, and special facilities may be relevant to the outcome, a national standard of care still applies to all Mary- land physicians.
After all, most physicians study the same subjects in medical school, receive the same training in their residency and fellowship programs, read the same medi- cal textbooks, take the same tests for board certification, attend the same seminars, read the same peer- reviewed medical jour- nals, join the same national associations and organizations, and have access to the same information available on the inter-
11
Dingle
v.Belin, 358 Md. 354, 749 A.2d 157 (2000).
Fall 2000 Trial Reporter 13
net. Every physician who renders obstet- rical care in the State of Maryland must be capable of, among other things, recog- nizing a high-risk pregnancy, ordering proper and timely tests to assess fetal well- being, diagnosing fetal distress, and expediting the delivery of any fetus who is at risk of sustaining irreversible brain damage or death. The standard of care should be the same in every community and county within Maryland. Thus, there is no justification for any physician to claim that he or she is unaware of all prac- tices, procedures and services available to obstetric and neonatal patients. A situation may arise where a physician practicing in a smaller community may not have access to the same facilities, services and equipment available in larger urban communities. The experts may disagree as to whether those facilities, equipment and services should have been available in that community. This does not mean, however, that every physician offering obstetric care in Maryland does not have to consider the unavailability of certain facilities, services, and equipment when deciding how to manage his or her patients. For example, a physician faced with the responsibility of managing a pregnant mother at risk of de- livering a premature infant in a community lacking neonatal intensive care facilities should recommend that his or her patient relocate to a community with a tertiary care hospital during the duration of the preg- nancy. Similarly, a physician with a patient who is considering a vaginal delivery after a cesarean section in a community that does not have a hospital capable of performing an emergency cesarean section 7 days a week, 24 hours a day, also should recom- mend that his patient move closer to a
hospital having that capability.
Hospitals. Similarly, the Court of Ap- peals applies national standards of care to hospitals, particularly those that are ac- credited under the standards promulgated by the Joint Commission on the Accredi- tation of Hospitals. The degree of care required of a hospital is sometimes defined in terms of that degree of care and skill that would be used by other hospitals act- ing under the same or similar circumstances. Hospitals are required to be aware of advances in the profession, the availability of special equipment, and the existence of specialists. Courts in other states have imposed liability on health care institutions for their negligent failure to: maintain facilities; provide and maintain medical equipment; hire, super- vise and retain nurses and other staff employees; and have in place procedures and protocols which protect patients.12 Hospitals are vicariously liable for the negligence of their employees, including nurses, residents, and interns, and they
(Continued on page 14) 12
In Thompson v. Charleston Community Memorial Hosp., 591 A.2d 703 (Pa. 1991), the Pennsylvania Supreme Court adopted and expanded the doctrine of corporate negligence to include hospitals and held that a hospital must: use reasonable care in maintaining safe and adequate facilities and medical equipment; select and retain only competent physicians; oversee the patient care provided by all those who practice medicine within its walls; and form, adopt, and enforce adequate rules and policies to ensure quality care.
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