Medical Malpractice


superior diversion from local practice would be a deviation from the locally- established standard of care. With that historical context, local


defense lawyers openly praised the application of a strict locality rule in Maryland,8


In the Court of Special and Maryland courts applied


the locality rule to protect local physicians from allegations of malpractice. Dunham v. Elder,9


Appeals explicitly affirmed a trial court’s decision to disregard expert testimony from physicians who practiced in the District of Columbia, with respect to the standard of care applicable to a physician in Prince George’s County.10 Dunham’s


pronouncement on


the viability of the locality rule in Maryland was applied by the trial court in Raitt v. Johns Hopkins Hospital.11


As


a consequence of an allegedly negligently performed tubal ligation, the plaintiff in Raitt suffered a bowel perforation; moreover, she was discharged from the defendant hospital “against her wishes” and despite her complaints of “severe stomach pain.”12


At trial, the plaintiff proffered four (4)


experts in the field of obstetrics and gynecology to testify concerning the violations of that applicable standards of care:


After hearing extensive argument from counsel, the trial court


ruled that none of the four medical


witnesses tendered by [the plaintiff] was qualified ‘to express opinions as to the standards of care in the City of Baltimore in the performance of the surgical procedure which is in question in this case.’ It arrived at this conclusion because none of the witnesses had ever practiced in Maryland; had ever enjoyed any hospital privileges in Maryland; or had ever maintained an office in this state.13


Te trial court rejected one of the plaintiff’s expert


witnesses, even though that physician had spent five years training as an OB/GYN intern and resident at Sinai Hospital.14


On appeal, however, the Maryland Court of


Appeals reversed the judgment of the trial court, holding that the question of whether an expert “had practiced, treated patients, enjoyed hospital privileges or maintained an office in


8 John F. King and Ward B. Coe, III, “Te Wisdom of the Strict Locality Rule,” 3 U. Balt. L. Rev. 221 (1974)


9 18 Md. App. 360, 364, 306 A.2d 568, 571 (1973). 10 Dunham, 18 Md. App. at 367, 306 A.2d at 572. 11 274 Md. 489, 336 A.2d 90 (1975). 12 Raitt, 274 Md. at 491, 336 A.2d at 90. 13 Raitt, 274 Md. at 493, 336 A.2d at 92. 14 Raitt, 274 Md. at 493, 336 A.2d at 92.


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Maryland” was only part of the proper inquiry in determining whether the experts were qualified to offer opinions.15 Decided by the Court of Appeals six months after Raitt,


Shilkret went even farther in abolishing the last vestiges of the “locality rule” in Maryland. After distinguishing several earlier cases,16


rule in Maryland.17


the Court of Appeals in Shilkret addressed the locality After tracing the historical roots of the


strict locality rule applied by the trial courts in Dunham and Raitt, the Court of Appeals also surveyed the advancements in medical specialization, technology, and medical school training that had taken place since ancient times, concluding that, “[w]hatever may have justified the strict locality rule fifty or a hundred years ago, it cannot be reconciled with the realities of medical practice today.”18


Rejecting the locality


rule entirely, the Court of Appeals instead announced that the standard of care for physicians must be measured by “that degree of care and skill which is expected of a reasonably competent practitioner” in the same specialty and acting in the same or similar circumstances.19 With regard to the standard of care applicable to health


care provider defendants in medical malpractice actions, the Court of Appeals adopted a rule of reasonable care, taking into account all relevant and material circumstances:


[We] hold that a physician is under a duty to use that that degree of care and skill which is expected of a reasonably


15 Raitt, 274 Md. at 500-01, 336 A.2d at 96. 16 State ex rel. Solomon v. Fishel, 228 Md. 189, 179 A.2d 349 (1962); Tempchin v. Sampson, 262 Md. 156, 277 A.2d 67 (1971); Kruszewski v. Holz, 265 Md. 434, 290 A.2d 534 (1972).


17 Te Court of Appeals left no doubt that it was addressing a question of first impression. Shilkret, 276 Md. at 192, 349 A.2d at 248 (“we now explicitly decide for the first time this question of the standard of care to be applied in medical malpractice cases”).


18 Shilkret, 276 Md. at 194, 349 A.2d at 249. 19 Shilkret, 276 Md. at 200-01, 349 A.2d at 253.


Trial Reporter / Summer 2010 23


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