Medical Malpractice
-- and the past and future victims of medical negligence in Maryland -- are not condemned to repeat that history. Te authors also will address how the defense recently has raised the locality rule, and will review how plaintiffs’ counsel, armed with compelling arguments (including those voiced in Shilkret itself) can overcome such tactics.
A Brief History of the “Locality Rule” Te rationale underlying the creation of a special “locality
rule” for physicians arose from the dismal state of medical science at the turn of the twentieth century and the “manifest inequality [in knowledge and skill] between physicians practicing in large urban centers and those practicing in remote rural areas.”4
Courts accepted as an article of faith
that a physician’s “knowledge or skill” would vary widely, depending upon whether the physician was a “country doctor” or a “city doctor”:
A country doctor could not be expected to have the equipment, facilities, contacts, opportunities for learning, or experience afforded by large cities.5
4 Shilkret, 276 Md. at 193, 349 A.2d at 249. 5 W. Page Keeton, et al., Prosser & Keeton on the Law of Torts, § 32, at 187-88 (5th ed. 1984). Accord Brown v. Tatsumi, 346 N.E.2d 673, 678 (Ohio 1976) (Te basis for [the locality rule] was that a physician at that time in a small town lacked the opportunity to keep abreast of the advances in the medical profession and that he did not have the most modern facilities to provide care and
In the latter half of the twentieth century, however,
courts and commentators became more critical of the locality rule. As a practical matter, the locality rule made it more difficult for injured plaintiffs to find experts qualified -- by experience practicing in the community -- to offer standard of care opinions against a local colleague. Another criticism focused on the consequence of the locality rule that, if all of the physicians in a particular community were incompetent, then the standard of care for that community would be incompetence:
If a town’s six doctors all ignored helpful new drugs for treatment of the plaintiff ’s condition, none of them would be guilty of malpractice for failing to prescribe such a drug when it was needed.6
Te problem would be compounded if there were just one
physician of a particular specialty practicing in a community -- that physician would be effectively immune from liability as no one could criticize his conduct.7
treatment for his patients . . . it would be unfair to hold such a doctor to the same standards of care as doctors who have such opportunities and facilities in larger cities”).
6 Dan B. Dobbs, Te Law of Torts, § 244, at 635 (2001). 7 Shilkret, 276 Md. at 194, 349 A.2d at 249 (“He could be treating bone fractures by the application of wet grape leaves and yet remain beyond the criticism of more enlightened practitioners from other communities” (quoting Waltz, Te Rise and Gradual Fall of the Locality Rule in Medical Malpractice Litigation, 18 DePaul L. Rev. 408, 411 (1969))).
Indeed, the locality rule actually discourages progress, because even a medically
Construction / Building Systems Electrical Systems
HVAC Systems
Expert: Daryl Ebersole, P.E. Investigates injuries and losses related to:
• Shocks and Electrocutions • Lightning Damage • Electrical Transmission and Distribution • Electrical Fires • Utility Pole Line Issues • Contractual Evaluations
Construction / Construction Injuries
Expert: Brent Leisenring, P.E. Investigates injuries and losses related to:
• Falls from Floor / Roof Openings & Edges • Cranes and Rigging • Defects and Failures • Construction Safety • Construction-Related Claims • Means and Methods
Expert: David Caggiano P.E., LEED AP Investigates injuries and losses related to:
• Carbon Monoxide Poisoning • Temperature / Humidity Control • Airflow Delivery and System Design • Heating / AC equipment Design • Installation / Maintenance Issues • Water Leaks / Damage
Architecture
Expert: Lawrence C. Dinoff, A.I.A., NCARB Investigates injuries and losses related to:
• Premises Safety • Walkways and Stairs • Building and Site Design • Building Failures • Construction Cost Claims • Designer Errors and Omissions
Engineers, Architects, Scientists & Fire Investigators 22 Trial Reporter / Summer 2010
www.robsonforensic.com 800.813.6736
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68