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Medical Malpractice Moreover, the “locality rule” provides no logical or

legal basis for excluding the opinion testimony of otherwise competent expert witnesses. Te Court of Appeals in Raitt held explicitly that expert witnesses need not have practiced in the local jurisdiction of the defendant in order to be competent to testify at trial, even assuming hypothetically that a strict locality rule were to apply.33

To the extent that the defense bar

argues that the locality rule was reinstated, then the holding in Raitt should negate any contention that an expert witness must have practiced or resided in Maryland, or must possess an encyclopedic knowledge of local demographic data. Indeed, the court’s decision in Raitt can be used to show the trial court that the definition of what constitutes a “locality” is very difficult to define. An argument can be made that it certainly is not a small geographic area given the technology of today. In cases where a proper groundwork has been laid,

cautious plaintiffs’ counsel might raise the issue affirmatively with the trial court, in a memorandum of law or motion in limine. Taking the initiative in this manner might allow plaintiffs’ counsel to define the terms of the debate, and to educate a busy trial judge who otherwise might be unfamiliar with the history and complexities of the locality rule. Quoting from the oral deposition testimony of the defendant health care provider, such an affirmative pleading could discredit the “locality rule” argument in a particular case, even before it has been made; in any event, the likelihood of an “ambush” would be diminished. Additional steps could be taken to prepare ones’ own

expert witnesses for the possibility of a locality rule attack. Some plaintiffs’ counsel prepare so-called

binders of demographic data on a given community and provide that data to their experts for their use. Armed with that data -- upon which the expert witness may rely in order to answer questions directed more towards demography than medicine -- an expert witness may testify confidently about such trivialities as the number of people living in a particular county or the number of beds in a particular hospital.

A. Shall have had clinical experience, provided consultation relating to clinical practice, or taught medicine in the defendant’s specialty or a related field of health care, or in the field of health care in which the defendant provided care or treatment to the plaintiff, within 5 years of the date of the alleged act or omission giving rise to the cause of action; and

B. Except as provided in item 2 of this subparagraph, if the defendant is board certified in a specialty, shall be board certified in the same or a related specialty as the defendant.

2. Item (ii) 1.B. of this subparagraph does not apply if: A. Te defendant was providing care or treatment to the plaintiff unrelated to the area in which the defendant is board certified; or

B. Te health care provider taught medicine in the defendant’s specialty or a related field of health care.

It is striking that the General Assembly placed these requirements in the very same statutory sub-section as the language upon which the defense relies for its claim that the locality rule was reinstated in 1993.

33 “Even assuming arguendo that the ‘strict locality’ rule is to be followed, the expert witness need only possess such knowledge of the applicable standard of care as will enable him to render an informed opinion. Tere is no absolute requirement that he practice or reside in the defendant-physician’s community.” Raitt, 274 Md. at 500, 336 A.2d at 36.

26 Trial Reporter / Summer 2010 “locality rule”

Conclusion More than thirty-five years age, the Court of Appeals

in Shilkret rejected the so-called “locality rule” -- a doctrine created by courts more than a century ago to protect small-town country doctors who were both technologically disadvantaged and geographically isolated from their “big-city’ brethren. With increasing frequency, however, defense counsels are

raising arguments concerning the locality rule. Being prepared for those arguments -- and the potential ambush at trial -- is the key to protecting your case, and your clients, from this discarded and discredited artifact of Maryland law. Lost in this discussion is the fact that the application of

a locality rule would result in a significant deterioration in the care being provided to patients. Confusion would reign and patient care would suffer. As trial attorneys, we represent individuals but our actions make the medical system safer for others. Te locality rule has the potential to make the medical system more dangerous and, accordingly, the locality rule must be resisted. 

Biography Karl J. Protil's

practice consists of personal injury

litigation, with an emphasis on medical malpractice and claims against the federal government. He has extensive experience before federal courts through the United States and in state trial courts in Maryland, Virginia and the District of Columbia. He is particularly active in cases involving brain damage to infants during birth. Prior to joining Shulman, Rogers, Gandal, Pordy & Ecker, P.A., Mr. Protil spent six years in the Army Judge Advocate General’s Corps and a year with Medical Mutual Liability Insurance Society of Maryland. George S. Tolley, III (Dugan, Babij & Tolley, LLC)

received his J.D. from New York University School of Law in 1991. Before entering private practice, he served for two years as law clerk to the Hon. Herbert F. Murray of the United States District Court for the District of Maryland. He is a member of the MAJ’s President’s Club, as an Eagle. A member of the Bar in Maryland, West Virginia and the District of Columbia, Mr. Tolley has litigated complex medical malpractice and personal injury cases in state and federal courts in those jurisdictions, as well as in the courts of Delaware, Pennsylvania, North Carolina, South Carolina and Georgia. In addition to MAJ, he is a member of the Association of Trial Lawyers of America, the West Virginia Trial Lawyers Association, the Pennsylvania Trial Lawyers Association, the American Bar Association, the Federal Bar Association, the West Virginia Bar Association, the District of Columbia Bar, and the Bar Associations of several local jurisdictions in Maryland. His practice is focused on medical malpractice, wrongful death, and catastrophic personal injury matters.

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