Medical Malpractice


was issued.27 pending case.28


Te issue is currently on appeal in another


Dealing with Locality Rule Arguments Until such time as appellate precedent confirms the


continuing viability of the holding in Shilkret, diligent plaintiffs’ counsel in medical malpractice cases must be prepared for the argument to be raised in nearly every case. Ideal preparation will begin in discovery, because the health care provider defendant often can provide the best evidence against the application of any “locality rule” argument. For example,


evidence that a defendant surgeon


completed medical education in several states, or has practiced in multiple hospitals, can lead to questions about whether the standards of practice are lower in Maryland (or in one of its counties, or in one of its hospitals) than elsewhere. Evidence that a physician serves on a medical school faculty, or travels to other cities to lecture, can give rise to similar questions. Expert witnesses also provide fertile ground for generating a similar record. Such questions (and the inevitable answers) can be


powerful tools to defeat the locality rule, because they expose the fiction of the locality rule in modern times, with admissions from the defendant physician that -- as the Court in Shilkret recognized more than thirty-five years ago -- standards of practice and reasonable care are essentially the same everywhere.29


of the topics related to demographics have any impact on the standard of care owed by a defendant physician to their patient. According to anecdotal accounts, it is in this manner that some defense counsels raise the question of the locality rule for the very first time in litigation -- as an ambush.31 In response to such surprise attacks, the preparation of counsel is again critically important. Knowing that a “locality rule” attack might be raised at any time allows plaintiffs’ counsel to prepare the response -- indeed, as noted above, some disclosures elicited from a defendant physician during a discovery deposition might be enough to eliminate any real concern about the locality rule at all. Requests for Admissions and Answers to Interrogatories are also helpful and can be used to rebut the defense tactic. All of these are helpful in convincing a judge to disallow any inquiry into the locality rule.


Until the appellate courts settle the issue, the legal


response to the locality rule relies on an understanding of the statutory scheme, as well as the decisions of the Court of Appeals in Shilkret and Raitt. First, there is no indication that the General Assembly


Tese arguments define the relevant


“same or similar communities” in an individual case as having no geographic borders -- if the standards or practice are the “same or similar” in every community, then every community fits within that “same or similar” label. Far from defining the standard of care, however, some


defense counsel attempt to use the “locality rule” as a tool for blocking testimony from plaintiffs’ expert witnesses, on the grounds that an expert witness must be “familiar with” the defendant’s particular community before being allowed to offer opinion testimony. According to this argument, expert witnesses from foreign jurisdictions (including other Maryland counties) should not be recognized by the trial court as competent to testify, unless they first demonstrate an expertise and knowledge in demography.30


Importantly, none


27 Cyrus v. Papel, CSA No. 2007-2734 (2007). 28 Daee v. Lucas,CSA No. 2009-2485. 29 Te defendant surgeon in Cyrus was educated in Boston, served a fellowship in San Francisco, taught medicine at Johns Hopkins University and lectured at conferences internationally. On appeal, the plaintiff highlighted the anachronistic absurdity of such a physician seeking the protections of a century-old legal doctrine designed to protect technologically disadvantaged and geographically isolated country doctors. Brief of Appellee, Brian Cyrus, in Cyrus v. Papel, CSA No. 2007-2734, at 29. Similar arguments can be effective in a variety of trial settings, where a record of a defendant’s geographically diverse education and sophistication has been developed.


30 Some defense counsel permitted leeway at trial to “explore” the issue frequently ask questions about the population of a particular town (or county), or the number of beds at a hospital -- almost anything, it seems, no matter how trivial, and without any preliminary showing that the questions bear relevance to the applicable standard of care. In that regard, the authors have never yet found a


in 1993 ever intended to overrule Shilkret or to reinstate an outdated and discredited locality rule. Te amendment of § 3-2A-02(c)(1) was occasioned by little to no notice whatsoever, and the status quo has remained unchanged for more than fifteen years. Indeed, when the General Assembly in 2004 created a new set of criteria for the qualification of experts testifying with regard to the standard of care, nothing about a “same or similar communities” requirement was considered, even in any of the draft legislation.32


health care provider who claimed in modern times that the applicable standard of care for surgery, e.g., was different depending upon the population of the town (or county) where the surgery was performed.


31 Another example of the “ambush” technique was employed in Daee v. Lucas, supra, in which the locality rule was not even mentioned at trial until a motion for judgment at the end of the plaintiff ’s case. Te denial of that motion for judgment is the basis for a pending appeal. 32 Md. Cts. & Jud. Procs. Code Ann. § 3-2a-02(c)(2) provides:


1. In addition to any other qualifications, a health care provider who attests in a certificate of a qualified expert or testifies in relation to a proceeding before a panel or court concerning a defendant’s compliance with or departure from standard of care:


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Trial Reporter / Summer 2010 25


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