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Medical Malpractice


Usurping the Role of the Jury and Turning Back the Hands of Time:


The “Locality Rule” in Medical Malpractice Cases --


Are We Condemned to Repeat History?


Karl J. Protil & George S. Tolley, III I


n the landmark case of Shilkret v. Annapolis Emergency Hospital Association,1


the Maryland Court of Appeals established the now-familiar legal standard for judging allegations of medical negligence:


[We] hold that a physician is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances. Under this standard,


advances in the profession,


availability of facilities, specialization or general practice, proximity of specialists and special facilities, together with all other relevant considerations, are to be taken into account.2


Te Court of Appeals has never overruled its decision in


that case, nor cited it disapprovingly. Before reaching its commonsense conclusion, the Court of Appeals carefully considered and rejected arguments in


1 276 Md. 187, 349 A.2d 245 (1975). 2 Shilkret, 276 Md. at 200-01, 349 A.2d at 253. Accord MPJI 4th 27:1 (2010).


favor of a “locality rule” for health care providers.3 For 35


years since Shilkret, the “locality rule” has been consigned to the dustbin of history. Over the last several years, however, members of the


medical establishment have attempted to resurrect the locality rule in Maryland, claiming that the holding in Shilkret was quietly overruled by the General Assembly in 1993. Indeed, anecdotal evidence on the MAJ listserv indicates that health care providers are raising the “locality rule” with increasing frequency, either as an alleged prerequisite to the qualification of an expert witness for the plaintiff, or as an alleged element of the plaintiff ’s cause of action itself. Te locality rule was an historical artifact in 1975, when


the Court of Appeals unanimously rejected it. In an “internet age” of tele-medicine, nationwide certification, standardized training and instantaneous sharing of information worldwide, “locality rule” arguments fail the “smell test” -- to date, no Maryland trial court has granted a defense motion to exclude an expert, or to enter a directed verdict, on the grounds that Shilkret has been overruled. Tis article will remember the locality rule, so that we


3 Shilkret, 276 Md. at 198, 349 A.2d at 251 (“Were we to adopt a standard tied to locality for specialists, we would clearly be ignoring the realities of medical life”).


Trial Reporter / Summer 2010 21


Medical Malpractice


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