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Medical Malpractice


can be no dispute that the locality rule has no place in the law today, or in the future.


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The “Locality Rule” Strikes Back? Te year after Shilkret was decided, the Maryland


General Assembly enacted the Maryland Health Care Malpractice Claims Act,21


establishing mandatory arbitration


and enacting other tort reforms in response to a perceived “crisis” in medical malpractice insurance. Te MHCMA codified the holding in Shilkret with regard to the applicable standard of care, enacting into law the rule of reasonable care under all of the relevant and material circumstances. In its current form, the statute provides:


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In any action…the health care provider is not liable… unless it is established that the care given by the health care provider is not is accordance with the standards of practice among members of the same health care profession 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. 22


Self-evidently, the statutory language tracks the language of the Court of Appeals in the Shilkret decision itself.23


As GAB00409_Trial Reporter Ad2.indd 1


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.20


Te Court of Appeals decided Shilkret in 1975, long before


the Internet age; medical technology and the standardization of medical education have advanced exponentially in the last 35 years. National Board certifications teach and reinforce a single standard of care to Board-certified physicians nationwide. Medical journals are available online in every corner of our State, and through “telemedicine” and closed- circuit


communication, documents and images can be


transmitted and interpreted by physicians almost anywhere in the world. Near-instantaneous access to information and training on a variety of procedures is the rule, not the exception. Medical students entering practice are no longer trained that patients are entitled to a lesser standard of care in rural areas (if they were ever trained that way at all). If the


locality rule was out of step with the realities of 1975, there 20 Shilkret, 276 Md. at 200-01, 349 A.2d at 253. Accord MPJI 4th 27:1 (2010).


24 Trial Reporter / Summer 2010 12/15/09 3:24 PM


defined in Shilkret, a physician’s standard of practice is “that degree of care or skill expected of a reasonably competent practitioner in the same class…acting in the same or similar circumstances,” which also includes consideration of the “availability of facilities [and] proximity of specialists and special facilities,” as well as other relevant considerations.24 In recent years, some members of the malpractice defense


bar have contended that, by enacting § 3-2A-02(c)(1) in its current form, the General Assembly superseded Shilkret by statute and “returned Maryland to a locality standard as set forth in” cases such as Dunham v. Elder.25


Te essential


basis for the argument focuses on a 1993 amendment to § 3-2A-02(c)(1), that added “situated in the same or similar communities” to the sub-paragraph; such language -- the argument goes -- necessarily rejected the holding of the Court of Appeals in Shilkret.26 To date, although raised with increasing frequency, the argument has not yet persuaded any trial court to hold that Shilkret was overruled. At least one appeal raising the issue was resolved after oral argument but before a written opinion


21 Md. Cts. & Jud. Procs. Code Ann. §§ 3-2A-01, et seq. (“MHCMA”). 22 Md. Cts. & Jud. Procs. Code Ann. § 3-2A-02(c)(1) (2010). 23 Shilkret, 276 Md. at 200-01, 349 A.2d at 253. Accord MPJI 4th 27:1 (2010). 24 Shilkret, 276 Md. at 200-01, 349 A.2d at 253. Accord MPJI 4th 27:1 (2010). 25 Brief of Appellant, Ira Papel, M.D., in Cyrus v. Papel, CSA No. 2007-2734, at 15. arguments have been made in other cases as well.


Similar


26 Although no trial or appellate court has accepted the argument that Shilkret has been overruled by § 3-2A-02(c)(1), a comment to Maryland Pattern Jury Instruction 27:1 cites Dunham (a case that had been overruled in both Raitt and Shilkret) and claims that § 3-2A-02(c)(1) establishes a locality rule in Maryland. Contrast Dingle v. Belin, 358 Md. 354, 368, 749 A.2d 157, 164 (2000) (citing Shilkret and § 3-2A-02(c)(1) in the same paragraph, both with approval, implying that the latter codified the former).


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