How To Write A National Standard Of Care

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1 The National Standard of Care in Medical Malpractice Actions: Does Small Area Analysis Make It Another Legal Fiction? By John C. Drapp III* I. Introduction It is something that probably every law student in recent years has heard in his or her first-year torts class: there is a national standard of care developing in the area of medical malpractice law. More appropriately stated, there is a national standard developing in the health care field itself, which in turn translates into the standard of care that an allegedly negligent doctor is measured against.' This paper will show that improvements in technology and transportation have essentially eliminated the reasons that formerly supported a localized standard of care. 2 Nevertheless, in some situations, it is difficult to square this so-called 'national standard of care' with the concept known as small area analysis, pioneered in large part by Dr. John E. Wennberg.' * J.D. and Health Law Certificate, Quinnipiac University School of Law (May 2003), M.H.A., Quinnipiac University (May 2003), B.S., Sociology, Southern Connecticut State University (2000). Notes and Comments Editor, Quinnipiac Health Law Journal The author would like to thank Professor Stephen R. Latham and Dr. Ronald T. Rozett, Director of the Quinnipiac Health Administration Program, for their insight and support in writing this paper. The author would also like to thank his parents who have supported him throughout the years. I Throughout this paper, the term "national standard of care" is used to denote what are actual standards (emphasis on the plural form), depending on the type of procedure or specialty involved. It by no means suggests a single, universal medical standard. Also, throughout this paper, the term "doctor" is used to connote a medical doctor, unless otherwise noted. 2 It should be noted, however, that a national standard of care is by no means uniform throughout the country. This topic will be explored in greater detail in Part II of this paper. 3 This paper only considers a small subset of medical malpractice actions, namely, those in which the use of a certain procedure is at issue. A claim in such an action thus arises in one of two ways: either a procedure was done that the plaintiff alleges should not have been done; or, a procedure was not done that the plaintiff alleges should have been done. Since Dr. Wennberg's work only speaks to the use, or lack thereof, of certain medical procedures, his work is only troubling in those types of medical malpractice claims. Dr. Wennberg's work does not relate to claims regarding the quality of a certain procedure once a physician decides to perform that procedure.

2 QUINNIPIAC HEALTH LAW [Vol. 6:95 This paper will summarize the legal development of the national standard of care, by presenting a sample of cases applying a national standard of care, as well as a sample of cases utilizing the "same or similar locality" standard of care, or something in between. This paper will also look at the basic tenets of small area analysis and discuss some of the history that has led to its widespread notoriety. A basic understanding of how and why small area analysis appeared makes the conclusion of this paper even more compelling, as the work was not undertaken to support or attack the use of a national standard of care. Rather, the work began as a study of the efficient utilization of medical resources; this is largely its continued use today. Finally, this paper will consider some of the problems that may develop, or may have already developed, as a result of the application of a national standard of care when the care being provided is by no means nationally uniform. In the end, it will become clear that in light of the work done by Dr. Wennberg and others, it is improbable that a uniform national standard of care exists, even in specialty practice areas. Instead, the current state of things suggests that what actually exists is a hybrid standard of care, comprised of the national standard of care and the "same or similar locality" standard of care. In effect, the socalled national standard of care, which is gradually being adopted in an increasing number of jurisdictions in some form or another, is, in some cases, nothing but a legal fiction. This conclusion is quite disturbing because it creates the possibility that justice will not be done when such a standard is applied. Equally, if not more disturbing, is the possibility that the standard of care applied in medical malpractice actions may begin to influence already disparate forms of health care we receive. I. Medical Malpractice Actions The medical malpractice action is a standard negligence action that encompasses a special duty. 4 That special duty, of course, is the one that runs between professional persons, such as doctors or other health care providers, and patients. 5 As a 4 DAN B. DOBBS, THE LAw OF TORTS 242 (2000). 5 See id.

3 20031 MEDICAL MALPRACTICE ACTIONS result of this special duty, "the duty of care owed by medical... professionals is usually expressed in and applied in a special way." 6 That "special way" is the standard of care. A. The Standard of Care "In the law of negligence, the [standard of care is the] degree of care that a reasonable person should exercise." 7 The standard of care essentially makes up the duty element of the tort of negligence. 8 This definition of the standard of care, while seemingly uninformative, is nevertheless useful because it is simplistic: the standard of care is the care that most people would exercise in a given set of circumstances. This standard, however, is merely a default rule.' In some situations a more specific standard of care is used.' An example of this "floating" standard of care is found in the motor vehicle statutes of many states: one speed limit is set for dry and clear weather conditions, but when precipitation is present on the roadway, the standard of care changes to adjust for the weather conditions." In several situations the standard of care changes based on the then existing circumstances. One group of such situations is medical malpractice cases. 2 In such cases, the trier of fact must determine "whether the defendant's conduct conformed to the medical standard or custom in the relevant community."" 3 This is different from cases where the "reasonable person" standard is used in that there is no balancing of the risks and benefits of the defendant's conduct. 4 A second, and perhaps more important way in which the medical malpractice standard of care differs from the reasonable person standard of care is that the medical malpractice standard of care must be established by via expert testimony.1 5 Generally, 6 Id. 7 BLACK'S LAW DIcrIONARY 1413 (7th ed. 1999). 8 RICHARD A. EPSTEIN, TiE LAW OF TORTS 154 (7th ed. 2000). 9 DOBBS, supra note 4, d. II See, e.g., CONN. GEN. STAT a (2001). 12 Id. 13 DOBBS, supra note 4, Id. But see Helling v. Carey, 519 P.2d 981 (Wash. 1974) (holding ophthalmologists liable under the "reasonable person" standard of care based on a risks and benefits analysis, rather than the medical malpractice standard of care). 15 See Beavis ex rel. Beavis v. Campbell County Mem'l Hosp., 20 P.3d 508, 513

4 QUINNIPIAC HEALTH LAW [Vol. 6:95 the expert or experts will be the same type of doctor as the defendant. This is not always necessary, however, so long as the expert has had some sort of experience with the problem at issue. 16 Indeed, as one court has observed, "fields of medicine overlap and more than one type of practitioner may perform the diagnosis or treatment," and thus, "a medical witness may qualify as an expert, even though he does not practice in the same specialty as the defendant." 17 Medical malpractice cases employ a special standard of care because the fact-finder, whether judge or jury, generally does not have the common knowledge necessary to determine whether a doctor's actions were "reasonable," thus conforming to the "reasonable person" standard of care.' 8 The fact-finder uses the medical malpractice standard of care as a benchmark to determine whether the doctor's actions were indeed reasonable within the medical community. B. The Importance of the Standard of Care in Medical Malpractice Actions Establishing the applicable standard of care in a medical malpractice action is only half of the proverbial battle. After the plaintiff has established the applicable standard of care, he must next prove that the defendant doctor was negligent because he breached that standard.' 9 Much like the process of establishing the applicable standard of care in the first place, a defendant doctor's deviation from that standard of care must be estab- (Wyo. 2001) (dealing with issues related to expert witness testimony in medical malpractice actions); Moon v. St. Thomas Hosp., 983 S.W.2d 225, 229 (Tenn. 1998) (citing TENN. CODE ANN (b) for the proposition that expert testimony is required to prove the three elements of a medical malpractice action); Stowe v. McHugh, 699 A.2d 279, 281 (Conn. App. 1997), cert. denied, 701 A.2d 662 (1997) ("[i]t is well established that ordinarily 'in a medical malpractice action, expert testimony is required to establish the standard of professional care to which the defendant is held... [ ]"); Holt v. Godsil, 447 So. 2d 191 (Ala. 1984) (affirming trial court's grant of summaryjudgment to the defendant doctor where the plaintiff patient failed to present evidence in support of his claim); see also DOBBS, supra note 4, See Harmon v. Patel, 617 N.E.2d 183 (Ill. App. Ct. 1993) (allowing expert witness' testimony despite the fact that the witness had never treated the actual condition at issue, but had knowledge regarding the cause of the condition that the patient suffered). 17 Lambert v. Shearer, 616 N.E.2d 965, 974 (Ohio App. 1992). 18 See Beavis, 20 P.3d at 513. Is) BARRY R. FURROW ET AL., HEALTH LAW 6-2(b) (1995).

5 20031 MEDICAL MALPRACTICE ACTIONS lished by expert testimony. 20 This testimony must generally be based on a "reasonable degree of medical and scientific certainty. ' "21 Furthermore, the expert must be able to testify "that the defendant's failure breached a general medical practice" and not merely that the expert would have done something different. 22 After such testimony is elicited, it becomes the province of the fact finder to draw the inference that malpractice was, or was not, committed. 23 In rare situations, however, the trial court itself will apply the standard of care it deems appropriate. 24 Notwithstanding such a situation, the importance of establishing the applicable standard of care, and deviation therefrom, is obvious. If the medical malpractice plaintiff fails to do either, such failure will likely be fatal to her claim. How is the standard of care derived? The simplest way to answer this question is to say that medicine, much like law, is generally a self-policing profession. As one author puts it, [i] n the medical profession, as in other professions, standards develop in a complicated way through the interaction of leaders of the profession, professional journals and meetings, and networks of colleagues. Neither the Food and Drug Administration, the National Institutes of Health, the Department of Health and Human Services, nor state licensing boards have had much to do with shaping medical practice. 25 Perhaps more important than the question of where the standard comes from is which standard, if there is more than one, should be applied. That is to say, if there are multiple standards of care that arguably apply to a given situation or condition, which standard is the proper medical standard, and which standard is the proper legal standard? The answers to these questions can be polar opposites. Nevertheless, an answer must be derived, if doctors, and, indeed, all health care practitioners 20 Id. 21 Id. (citing Carter v. Johnson, 617 N.E.2d 260 (I. App. Ct. 1993)). 22 Id. (citing Maurer v. Trustees of the Univ. of Pa., 614 A.2d 754 (Pa. Super. 1992)). 23 FURROW, supra note 19, 6.2(b). 24 See Helling, 519 P.2d 981. See also CHARLES W. QUIMBY,JR., LAW FOR THE MEDICAL PRArITIONER, (1979) (discussing Helling). 25 FURROW, supra note 19, 6.2(a).

6 QUINNIPIAC HEALTH LAW [Vol. 6:95 are to have any degree of predictability as to their exposure to professional liability. III. Application of the Standard of Care in Medical Malpractice Cases At one time, it was common for doctors to be held to a strictly local standard of care, that is, the standard of care as established by the doctors in the very same locality as the defendant practitioner. 2 6 This standard of care is best understood with an example: "[i]f a town's six doctors all ignored helpful new drugs for treatment of the plaintiff's condition, none of them would be guilty of medical malpractice for failing to prescribe such a drug when it was needed." 27 The reason for this rule was "to protect the rural and small town practitioner, who was presumed to be less adequately informed and equipped than his big city brother." 28 There are several cases that seem to have applied this strict local standard early in American jurisprudence. 29 Dobbs' treatise points out this idea seemingly had its genesis in Small v. Howard,"' but it also points out that such an origination does not exactly square with the locality standard. 3 ' Regardless of the accuracy of this statement, it is of no consequence because the Massachuesetts Supreme Judicial Court later overruled Small in Brune v. Belinkoff 32 Brune has been often cited as a seminal case supporting the adoption of a standard of care that is less restrictive than the older strict locality standard of care. 26 See generally DOBBS, supra note 4, DOBBS, sup)ra note 4, SeeJon R. Waltz, The Rise and Gradual Fall of the Locality Rule. in Medical Malpractice Litigation, 18 DEPAUL L. REv. 408, 410 (1969). 29 See id. (citing three cases from the 1870s applying a locality rule). "o 128 Mass. 131 (1880). 41 See DOBBS, supra note 4, 244 n.1 (pointing out that the court in Small v. Howard was not as much concerned with the locality that the doctor was practicing in, as much as it was concerned with the fact that the defendant doctor, who allegedly negligently performed surgery in that case, did not ordinarily perform surgery) See 235 N.E.2d 793 (Mass. 1968). It should be noted that Brune, while overruling Small only overruled the strict locality standard. Brune still allows some local circumstances to be taken into account. Accord Hall v. Hilbun, 466 So. 2d 856 (Miss. 1985) (providing a resource caveat to the national standard of care). '4- See, e.g., Siirila v. Barrios, 248 N.W.2d 171, 192 (Mich. 1976) (adopting a same or similar circumstances test which is to consider various considerations the court lists): We think that the approaches of the Washington, Massachusetts, and Kentucky Supreme Courts suggest the most viable alternatives [to the same lo-

7 2003] MEDICAL MALPRACTICE ACTIONS The underlying rationale for uniformly following the strict locality standard was that a physician in a small or rural community will lack opportunities to keep abreast with the advances in the profession and that he will not have the most modern facilities for treating his patients. Thus, it is unfair to hold the country doctor to the standard of doctors practi[c]ing in large cities. 34 Since that time, however, there have been advances in "transportation, communication and medical education," which "tend to promote a certain degree of standardization within the profession. ' "" In addition, Dobbs points out computer technology advances, which also promote standardization. 36 In light of these considerations, many jurisdictions have done away with the strict locality standard. 3 1 In its place two newer standards have been substituted: the "same or similar locality" standard, which may include an entire state, and a national standard. 38 It is primarily the purported national standard that is of concern for this paper. A. Application of the National Standard of Care As noted above, as medical technology and education advanced, courts began to hold doctors liable under what has been termed a national standard of care. Under this standard of care, doctors are expected to provide patients with care that is compacality rule], insofar as they permit cognizance of the purposes of the locality rule, as well as a recognition of the tradition that, by and large, physicians, because of their special knowledge, set their own standard of care. Further, while ensuring adherence to social responsibility, we do not wish to make it impossible to attract physicians to what may be less desirable centers of practice, those rural areas to which the old locality rule was properly directed. (citing Pederson v. Dumouchel, 431 P.2d 973 (Wash. 1967); Brune, 235 N.E. at 798; Blair v. Eblen, 461 S.W.2d 370, 373 (Ky. 1970)); see also Brent R. Cohen, Locality Rule, 51 U. COLO. L. Riv. 587, 606 (1980) (concluding that the rule adopted by the Massachusetts Supreme Judicial Court in Brune "adequately deal[s] with the deficiencies of the [liocality [r]ule," but also concluding that the better rule was one based on Pederson v. Dumouchel, which essentially adopted a resource-based standard of care, similar to the adopted in Hall v. Hilbun). 34 Brune, 235 N.E.2d at Id. 36 DOBBS, supra note 4, Id.. 38 Id.; see also Waltz, supra note 28 (describing Viita v. Fleming, 155 N.W (Minn. 1916), as one of the earliest cases applying a standard of care in which the "relevant locality was the entire state").

8 102 QUINNIPIAC HEALTH LAW [Vol. 6:95 rable to the care the patient would receive anywhere else in the United States. The rationale for such a standard is eloquently stated in Hall v. Hilbun. 3 " In Hall, the court noted that [w]e would have to put our heads in the sand to ignore the,nationalization' of medical education and training. Medical school admission standards are similar across the country. Curricula are substantially the same. Internship and residency programs for those entering medical specialties have substantially common components. Nationally uniform standards are enforced in the case of certification of specialists. Differences and changes in these areas occur temporally, not geographically.' The court went on to say that [p]hysicians are far more mobile than they once were. They frequently attend medical school in one state, do residency in another, establish a practice in a third and after a period of time relocate to a fourth. All the while they have ready access to professional and scientific journals and seminars for continuing medical education from across the country. Common sense and experience inform us that the laws of medicine do not vary from state to state in anything like the manner our public law does. 41 With those statements made, the court justified its finding that a national standard of care existed in Mississippi. 4 2 These same justifications are the ones generally used to support a finding that a national standard of care exists. As of this writing, Hall v. Hilbun has been cited in no fewer than 176 cases and law review articles, from over seven jurisdictions, as well as seven American Law Reports annotations. In Hall, the patient, the plaintiff's wife, went to the hospital complaining of abdominal pain." The patient's primary physician brought in the defendant, a general surgeon, because he believed the patient had a surgical problem. 44 The defendant surgeon recommended exploratory surgery, which was ' 466 So. 2d 856 (Miss. 1985). 40 Id. at Id. 42 Id. at " 466 So. 2d at Id.

9 2003] MEDICAL MALPRACTICE ACTIONS 103 performed. 45 Although the patient seemed to be doing well based on the surgeon's observations after staying with her for a short time in the recovery room, she died less than sixteen hours later. 46 The plaintiff filed suit against the defendant surgeon for the wrongful death of his wife. 4 7 The plaintiff, in an attempt to establish a national standard of care, offered the testimony of two widely respected and credentialed doctors. 48 Both doctors testified that while they were unfamiliar with the standard of care in Pascagoula, Mississippi (the location of the alleged malpractice), they were familiar with the prevailing national standard of care at the time. 49 The trial court excluded the testimony of both doctors, ruling that the locality standard applied in the case, and that since neither doctor was aware of the standard of care in Pascagoula, Mississippi, neither doctor's testimony would establish the standard of care. 50 Consequently, the defendant's motion for a directed verdict at the conclusion of the plaintiffs case was granted. The court, in granting the motion, reasoned that the plaintiff failed to present a prima facie case of medical malpractice based on the proffered testimony. 5 ' The plaintiff appealed when his motion for a new trial was denied. 5 2 On appeal it was urged, presumably by the plaintiff, "that the circumstances which [gave] rise to the [locality] rules have passed out of existence." 53 The appellate court agreed, saying [t]he practice of medicine in general and medical malpractice litigation in particular are said to have achieved a level [of] sophistication that require[s] a modernization of our law. There is merit in the attack [on the locality rules]. Suffice it to say that the rules we have heretofore employed do not seem nearly so consonant with reason and fairness as they once did Id. 46 Id. 47 Hall, 466 So. 2d at Id. at Id. at Id. at Hall, 466 So. 2d at Id. 53 Id. at Id. at 867.

10 QUINNIPIAC HEALTH LAW [Vol. 6:95 After this statement, the court noted that a prior case in Mississippi had recently addressed the issue of the locality rule. 55 In King v. Murphy, 6 the court noted that it had "greatly expanded the concept of the 'neighborhood or locality'... to include geographically at least the entire state of Mississippi plus 'a reasonable distance adjacent to state boundaries.,',5' King, in hindsight, was apparently the beginning of the end of the locality rule, at least in Mississippi. This was evidenced by Hall, where the court came clean on the issue of the locality rule: "[f] or the sake of intellectual honesty, we should go ahead and state forthrightly what everyone who has read King surely knows: that the 'locality or neighborhood concept' as we have heretofore known it has been obliterated."", While making it clear that the locality standard was not the applicable standard to be used in medical malpractice actions, the Hall court did not adopt a full-fledged national standard, either. Rather, the court adopted what has been termed a "resource-based national standard of care." 59 This "resource-based national standard of care" essentially allows expert testimony as to the standard of care based on "such medical knowledge as is commonly possessed or is reasonably available to minimally competent surgeons throughout the country[,]" modified as necessary by the "facilities, equipment, personnel and general medical resources available []" to the treating physician. ' 6 Notwithstanding this caveat, as the court termed it in Hall, 6 it is clear that Mississippi has adopted a national standard of care. In some jurisdictions, the application of a national standard.5 Hall, 466 So. 2d at c, 424 So. 2d 547 (Miss. 1982). 57 Hall, 466 So. 2d at 867 (citing King, 424 So. 2d at 550) (emphasis in original); see also Fitzmaurice v. Flynn, 356 A.2d 887, 892 (Conn. 1975) (reaffirming the view that the "general neighborhood," or locality, consisted of the entire State of Connecticut, and acknowledging "there may exist reason to disregard territorial limitations even with regard to state boundaries.") (emphasis added); Ives v. Redford, 252 S.E.2d 315, 318 (Va. 1979) (holding that the "same or similar locality" standard in Virginia does not require the expert witness to have practiced in the same community as the defendant physician, as to so require would be to defeat the purpose of the law). 58 Hal, 466 So. 2d at See Goldman By and Through Goldman v. Bosco, 120 F.3d 53, 55 (5th Cir. 1997); see also Clayton v. Thompson, 475 So. 2d 439, 442 (Miss. 1985) (describing the national standard of care set forth in Hail as having a "resources-based caveat[ ]"). (( Hall, 466 So. 2d at (3 Id. at 872.

11 2003] MEDICAL MALPRACTICE ACTIONS of care may be mandatory. In Travers v. District of Columbia, 6 2 the plaintiff patient brought an action against the defendant hospital for alleged negligence based on a failure to administer aspirin post-surgery to prevent blood clotting. 63 Consequently, the plaintiff patient's foot was partially amputated after a blood clot developed in his ankle. 64 The Travers court held that the plaintiff had failed to establish the national standard of care, which District of Columbia law requires to be proven in medical malpractice cases. 65 Specifically, the court noted that where the expert had discussed the medical issue and accompanying standard of care only with other doctors in the general metropolitan area, such testimony was insufficient to establish a national standard of care. 66 Thus, in Travers, the plaintiff patient failed to prove medical malpractice because he could not establish a national standard of care, as required by District of Columbia law, 6 7 that required physicians "to administer aspirin to a post-splenectomy patient with a platelet level twice the normal [level]. "..."68 Even if a jurisdiction does not universally recognize a national standard of care, such non-recognition will not necessarily preclude the national standard from being introduced. In Kobialko v. Lopez, 69 the Illinois Court of Appeals held that a "doctor familiar with the national, uniform minimum standards rather than local, minimal nonspecialized standards is considered sufficiently knowledgeable of all localities." 7 The court in Kobialko went on to say that the Illinois Supreme Court in Purtill "encouraged a broad reading of the similar locality rule, recognizing the 'relatively uniform standards for the education and licensing of physicians.'"71 The Kobialko opinion goes on to mention three other cases where the similar locality rule was read broadly in Illinois, turning it into a rule that can be inter A.2d 566 (D.C. 1994). 63 Id. at Id. at Id. at Travers, 672 A.2d at Id. at 568 (citing Washington v. Washington Hosp. Ctr., 579 A.2d 177, 181 (D.C. 1990) (internal citations omitted)). 68 Id. at N.E.2d 1044 (11. App. Ct. 1991). 70 Id. at 1047 (citing Purtill v. Hess, 489 N.E.2d 867 (Il )). 71 Id. (citing Purtill, 489 N.E.2d at 874).

12 106 QUINNIPIAC HEALTH LAW [Vol. 6:95 preted as a national standard of care. 7 2 Some courts, while not adopting a national standard of care, have nonetheless discarded the locality standard of care, and have hinted that a national standard of care may be forthcoming. For example, in Vergara v. Doan, 73 the Indiana Supreme Court joined the "[m]any states describ[ing] the care a physician owes without emphasizing the locality of practice." 4 The Vergara court said that locality is only one factor among several that is to be considered when analyzing whether a doctor met the standard of care. 75 Other factors include "advances in the profession, availability of facilities, and whether the doctor is a specialist or general practitioner." 76 Such factors make the Vergara standard very analogous to the resource-based national standard of care found in Hall. 7 " Though the Vergara court did not explicitly adopt a national standard of care, its inclination toward one is obvious. One of the instructions given to the jury by the trial court in Vergara read "I instruct you that the [standard of care]... is that degree of skill and knowledge which ordinarily was possessed by general practice physicians who devote attention to obstetrics... in Decatur and similar localities of similar size in '' 71 It was the fact that this instruction was given by the trial court that was one of the plaintiff-appellant's contentions on appeal. 79 The plaintiff-appellant sought a new trial claiming the instruction "overemphasized the same or similar locality" standard. 8 " Although the Indiana Supreme Court agreed that the instruction was erroneous based on its holding that the "same or similar locality" rule was now obsolete, it nevertheless held that the instruction was a harmless error that did not warrant a new trial."' The court reasoned that the instruction was harmless er- 72 See id. at 1048 (discussing Sleazak v. Girzadas, 522 N.E.2d 132 (Ill. App. Ct. 1988); Fultz v. Peart, 494 N.E.2d 212 (Il. App. Ct. 1986); and Thompson v. Webb, 486 N.E.2d 326 (Il1. App. Ct. 1985)) N.E.2d 185 (Ind. 1992). 74 Id. at Id. 76 Id. 77 See Hall, 466 So. 2d at Vergara, 593 N.E.2d at 187 (emphasis added). 79 Id. 80 Id. 81 Id. at 188.

13 2003] MEDICAL MALPRACTICE ACTIONS ror because the trial court's second instruction told the jury that if they found a national minimal standard of care existed by a preponderance of the evidence, they may use that standard to measure the defendant doctor's conduct. 8 2 Thus, it would seem that although the mandatory application of a national standard of care is not required in Indiana, such an application might be in the wings now that the "same or similar locality" standard has been discarded. Another case that has discarded the locality standard of care is Blair v. Eblen." 3 In Blair, the Kentucky Court of Appeals refused to "perpetuate a rule designed to protect country doctors in 1902," and instead chose to "leave determination of the standard [of care] to the medical profession and not the lay courts." 4 In so holding, the Kentucky Court of Appeals left the standard of care to be formulated by the profession itself, in a self-policing style. This policy is concededly good in theory because doctors themselves are in the best position to know what is being done for various conditions. They are also obviously in the best position to know what technology and advancements are available. Nevertheless, this method of establishing the standard of care suffers from a major drawback. The drawback that courts must be wary of in medical malpractice cases where the standard of care must be determined is the possibility of a "conspiracy of silence," which is a term used to connote the possibility that doctors who would ordinarily be qualified to testify as experts in medical malpractice actions do not testify, to avoid testifying against other members of their profession. 5 To analogize, such a conspiracy might be termed a "white wall of silence" (for the white clothing usually worn by health care providers), much like the supposed similar conspiracy in law enforcement circles is termed the "blue wall of silence." 6 If a national standard of care is involved, however, the conspiracy can be effectively reduced, if not eliminated, as out- 82 Vergara, 593 N.E.2d at S.W.2d 370 (Ky. 1970). 84 Id. at See generally Trull v. Long, 621 So. 2d 1278, (Ala. 1993). Trull provides an extensive list of cases and law review articles discussing the so-called "conspiracy of silence." 86 See, e.g., Blue Wall of Silence, Series, at metro/ md/princegeorges/government/police/shootings/ (last visited April 21, 2003).

14 QUINNIPIAC HEALTH LAW [Vol. 6:95 of-town doctors may be more willing to testify as to the standard of care, free from worry about the issues that normally persuade doctors to take part in the "conspiracy of silence."" v Thus, it would not be surprising, based on the "conspiracy of silence" and a standard of care formulated by the medical profession, to see Kentucky, and states with similar policies of deference to the medical profession, applying a national standard of care. There are several other cases that state unequivocally that a national standard of care exists, at least in certain jurisdictions. 8 There have also been a number of cases applying a national standard of care only to certain types of doctors. For example, in Bahr v. Harper-Grace Hospitals, " the Michigan Supreme Court, agreeing with the Michigan Court of Appeals, held "the standard of care for general practitioners is that of the local community or similar communities.... "90 The court also held, however, that the standard of care to be applied to specialists is a national standard.' The Colorado Supreme Court, sitting en banc, reached a similar conclusion in Jordan v. Bogner." In Jordan, the court said "[a] nonspecialist physician must act consistently with the standards required of the medical profession in the community where he or she practices[,] ''9 while "a specialist... is measured against a standard commensurate with that of a reasonable physician practicing in that specialty." 94 While the Jordan court stopped short of explicitly saying a national standard of care ap- 87 See generally id., at 1280 (citing Morrison v. MacNamara, 407 A.2d 555, 563 n. 7 (D.C. 1979); Hansbrough v. Kosyak, 490 N.E.2d 181, 185 (Ill. App. Ct. 1986); Bartimus v. Paxton Cmty. Hosp., 458 N.E.2d 1072, 1077 (II. App. Ct. 1983); Ardoin v. Hartford Acc. & Indem. Co., 360 So. 2d 1331, 1337 (La. 1978); and Orcutt v. Miller, 595 P.2d 1191, 1194 (Nev. 1979)). 88 See, e.g., Lamas v. Borras, 16 F.3d 473 (1st Cir. 1994) (applying Puerto Rico law); Capitol Hill Hosp. v. Jones, 532 A.2d 89, (D.C. 1987) (stating that "the major underpinnings of the locality doctrine no longer obtain[,]" and affirming verdict for plaintiff at trial, despite appeal by defendant physician, claiming that the locality standard of care applied); Bates v. Meyer, 565 So. 2d 134, 136 (Ala. 1990) (stating "[t]he legal duty imposed upon physicians is to exercise the degree of reasonable care, diligence, and skill that reasonably competent physicians in the national medical conmunity would ordinary exercise when acting in the same or similar circumstances[ ]") N.W.2d 170 (Mich. 1995). 9o Id. at 172 (citing Fortner v. Koch, 261 N.W. 762 (Mich. 1935)). 91 Id. (citing Naccarato v. Grob, 180 N.W.2d 788 (Mich. 1970)) P.2d 664 (Colo. 1993) (en banc). 91 Id. at 666 (citing Larson v. Lindahl, 450 P.2d 77, 78 (Colo. 1968)). 94 Id. (citing Short v. Kinkade, 685 P.2d 210, 211 (Colo. App. 1983)) (emphasis added).

15 20031 MEDICAL MALPRACTICE ACTIONS plies to specialists, a reasonable interpretation of Jordan suggests that such a result was intended. After all, if a reference to geography is specifically included in the standard of care to be applied to general practitioners, but it is not mentioned in the standard of care to be applied to specialists, then it can be said that geography is to play no role in the formulation of the standard of care for specialists. In Chapel v. Allison, 95 the Supreme Court of Montana held "that a non-board-certified general practitioner is held to the standard of care of a 'reasonably competent general practitioner acting in the same or similar community in the United States in the same or similar circumstances."' 96 Although the court in Chapel did not actually speak to the standard of care to be applied to specialists, it did say that "[the] opinion applies only to general practitioners, and does not affect board-certified specialists or board-certified general or family practitioners." 97 Thus, a negative inference can be drawn that specialists are to be held to a national standard, as they are clearly not subject to a "same or similar locality" standard, and it is improbable that they would be held to a strict locality standard, leaving only the national standard. B. The "same or similar locality" Standard of Care Between the national standard of care and the same (or strict) locality standard of care is the "same or similar locality" standard of care. This standard closely resembles the traditional tort standard of the reasonable person. It requires a doctor to act in a manner that is consistent with the way an ordinary physician of the same skill would act under similar conditions in a similar community. 98 Again, in order to understand this standard of care, especially in terms of how it operates and how it is applied differently from a national standard of care, a description of some of the several cases applying it is in order. Several cases evidence the use of this standard. In Thibo P.2d 204 (Mont. 1990). 96 Id. at Id. 98 See, e.g., Hall, 466 So. 2d at 868 (citing ten cases from different jurisdictions applying a "same or similar locality" standard).

16 110 QUINNIPIAC HEALTH LAW [Vol. 6:95 deaux v. Aetna Casualty and Surety Co., 99 the Court of Appeals of Louisiana applied a classically worded "same or similar locality" standard. Part of that standard stated that, "[a]s a general rule, it is [the doctor's] duty to exercise the degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same or similar community or locality...,",'o Similarly, the Supreme Court of Washington, in Versteeg v. Mowery,"" 1 said without ambiguity that "[i]t is well settled that, before a physician or surgeon may be held liable for malpractice, he must have done something in the treatment of his patient which the recognized standard of medical practice in his community forbids in such cases. ",.o. This standard of care, which obviously existed years ago, as evidenced by Thibodeaux and Versteeg, continues to exist in recent cases. In Fales v. Book," 3 the plaintiff, the father of the child and husband of the mother, alleged that the defendant physician was negligent in using forceps to assist with the delivery of the child. 0 4 As a result of this alleged negligence, the child suffered a fractured skull."" 1 The case went to trial, and the jury returned a verdict for the defendant physician. " " After his various posttrial motions were resolved against him, the plaintiff appealed. 7 On appeal, the plaintiff contended, inter alia, that the trial court erred in failing to give the plaintiff's proposed jury instruction and also in giving a different jury instruction. 0 " The jury instruction the court gave differed from the one proposed by the plaintiff in that it included language required by statute; the court's instruction included a reference to a "same or similar locality" standard.'" In reversing and remanding the case for a new trial, the Nebraska Court of Appeals held that the giving of So. 2d 314 (La. App. 1968). 100 Id. at 317 (citing Meyer v. St. Paul Mercury Indemnity Co., 73 So. 2d 781 (La. 1953)) (emphasis added) P.2d 540 (Wash. 1967). 102 Id. at N.W.2d 831 (Neb. App. 1997). 104 Id. at Id. 106 Id. 107 Fa/es, 558 N.W.2d at Id. at o09 Id. at 835.

17 2003] MEDICAL MALPRACTICE ACTIONS the instruction was an error on the part of the trial court, because "no evidence was adduced or argument made that the standard of care was unique to the locality...."'i' The negative implication here, then, is that if evidence is presented regarding a local standard of care, then the jury will be allowed to consider the evidence under an instruction referring to a standard of care in the same or a similar locality. While Fales is concededly not squarely on point with a "same or similar locality" standard of care, other jurisdictions have been more explicit. For example, in DiFranco v. Klein,"' the Rhode Island Supreme Court stated [i] t is well settled in Rhode Island that when a physician undertakes to treat or diagnose a patient, he or she is under a duty to exercise 'the same degree of diligence and skill which is commonly possessed by other members of the profession who are engaged in the same type of practice in similar localities having due regard for the state of scientific knowledge at the time of treatment. ' 12 Several other courts have been just as explicit as the Rhode Island Supreme Court in applying a "same or similar locality" standard of care. 13 Some states even have statutes imposing such a standard of care. 1 4 In Keyser v. Garner, 5 the defendant-appellant doctor appealed an order of the trial court granting the plaintiff-appellees a new trial; the plaintiff-appellees were the parents of the malpractice victim." 6 This motion was granted because the Idaho Court of Appeals found that the trial court had committed error in allowing the testimony, on behalf of the defendant-appellant doctor, of an expert witness from St. Louis, Missouri, without proper foundation evidence as to the expert's familiarity with 110 Id. at ' 657 A.2d 145 (R.I. 1995) (emphasis added). 112 Id. at 148 (internal citations omitted). 113 See, e.g., Martinmaas v. Engelmann, 612 N.W.2d 600 (S.D. 2000); Vieregger v. Robertson, 609 N.W.2d 409 (Neb. Ct. App. 2000); Champagne v. U.S., 836 F. Supp. 684 (D.N.D. 1992). 114 See, e.g., Dodson v. Charter Behavioral Health Sys. of Northwest Ark., 983 S.W.2d 98 (Ark. 1998); see also FLA. STxr ; IDAHO CODE (Michie 2002); LA. REV. STAT. ANN. 40: (A)(4) (West 2002); VA. CODE ANN (Michie 2002) P.2d 409 (Idaho 1996). 116 Id. at 411.

18 112 QUINNIPIAC HEALTH LAW [Vol. 6:95 the standard of care in Boise, Idaho. 1 " 7 In reversing the trial court's order for a new trial for reconsideration, in light of the fact that the expert's testimony was properly admissible, the Idaho Court of Appeals held that "discussions with a knowledgeable local physician to ascertain the community standard of care [may] be sufficient to qualify an out-of-town physician as an expert witness...,,"'" This interpretation was of Idaho Code sections and " 9 The latter section provides, according to the court, that it "shall not be construed to prohibit or otherwise preclude a competent expert witness who resides elsewhere from adequately familiarizing himself with the standards and practices of (a particular) such area and thereafter giving opinion testimony in such a trial."' ' 21 Thus, what the Idaho Court of Appeals did in this case was to say that discussions with local physicians regarding the standard of care may be sufficient to qualify an out-oftown physician as an expert witness. The broader point in Keyser, however, is that an expert must possess "professional knowledge and expertise coupled with actual knowledge of the applicable said community standard." '12 1 In Mabon v. Jackson-Madison County Gen. Hosp.,' 22 the plaintiff, the deceased patient's husband, brought an action against the defendant hospital and physician for "failure to respond in a reasonably prudent manner," resulting in the patient's death from a small bowel obstruction. 2 1 In response, the defendant doctor moved for summary judgment, claiming that "he was and is familiar with the recognized standard of acceptable professional practice in the medical community of Jackson, Tennessee for the physicians engaged in the medical practice of general, vascular, and thoracic surgery."' 24 Further, the defendant doctor claimed that he conformed to this standard in administering treatment to the patient Id. at Id. at 'i Keyser, 922 P.2d at Id. at 412 (internal citation omitted). 121 Id. at 412 (quoting IDAHO CODE ) (emphasis added) S.W.2d 826 (Tenn. 1997). 121 Id. at 827 (emphasis added). 124 Id. (emphasis added). 125 Id.

19 20031 MEDICAL MALPRACTICE ACTIONS In opposition to the defendant doctor's motion for summary judgment, the plaintiff presented the testimony of an expert. 12 This expert, a Missouri licensed and board certified general and thoracic surgeon, testified at a deposition that there was a national standard of care for such surgeons In explaining this supposed national standard of care, the expert stated that "[i]f you had this case in New York City or San Francisco or Chicago or Memphis, Tennessee, or Jackson, they're all the same." 128 Based on this testimony, the trial court excluded the expert's testimony, finding that the expert was not qualified to testify as to the statutory standard of care in Tennessee That standard of care was that of a "general surgeon practicing in Jackson, Tennessee or in a similar community in 1991."''" After the exclusion of the testimony, the trial court entered judgment in favor of the defendant physician as a matter of law.' " " In affirming the order of the trial court granting summary judgment to the defendant physician, the Court of Appeals of Tennessee said "a complete lack of knowledge concerning a community's resources would be contrary to knowledge of the required standard of care. The plaintiff's tendered expert must be familiar with the standard of care in the community in which the defendant practices or a similar community."' 3 2 Since the plaintiff failed to convince the court that the plaintiff's expert was familiar with the standard of care in Jackson,. Tennessee, the court found that the expert was not qualified to -testify as to the standard of care applicable to the defendant physician.' 33 Thus, Mabon is a case where even though the expert testified to the existence of a national standard of care, the court nevertheless applied a "same or similar locality" standard because of the statute that established the standard. There are several other cases employing the use of the "same or similar locality" standard. 134 The above cases make 126 Mabon, 968 S.W.2d at Id. 128 Id. 129 Id. 130 Mabon, 968 S.W.2d at 828 (citing TENN. CODE ANN ). 131 Id. 132 Id. at Id. 134 See, e.g., Baylis v. Wilmington Med. Ctr., Inc., 477 A.2d 1051, 1057 (Del. 1984);

20 QUINNIPIAC HEALTH LAW [Vol. 6:95 clear that the "same or similar locality" standard is alive and well. This, however, is not contrary to the existence of a national standard of care. The court in Hall observed this in a footnote: "[a]s a practical matter there is often little difference between this 'similar community' standard and the 'national' standard." 3 5 This is presumably because for any given locality, there are likely several "similar" localities throughout the country, effectively making the standard a somewhat "national" one. C. The Developing Trend Towards a National Standard of Care Notwithstanding the jurisdictions that, in the words of the 31 6 Hall court, have "doggedly [clung] to the old locality rule[,]' there is an unmistakable gravitation towards a national standard of care. Whether the trend is restricted to specialists,' 37 or applied universally, 1 " 8 it is undisputable that many jurisdictions in this country are making use of a national standard of care, in some way or another. When the number of jurisdictions using some kind of national standard of care is summed with the num- Jenkins v. Parrish, 627 P.2d 533, 537 (Utah 1981); Priest v. Lindig, 583 P.2d 173, 176 (Alaska 1978) So. 2d at 868 n.5 (citing Goffe v. Pharmaseal Laboratory, Inc., 568 P.2d 600, 604 (N.M. 1976) Id. at 869 (citing Campbell v. Oliva, 424 F.2d 1244, 1248 (6th Cir. 1970) (applying Tennessee law)). 137 See Bahr, 528 N.W.2d at 171 (agreeing with the Michigan Court of Appeals that "the standard of care for general practitioners is that of the local community or similar communities, and is nationwide for a specialist[ I"); see Jordan, 844 P.2d at 666 (Colo. 1993) (en banc) (stating a "nonspecialist physician must act consistently with the standards required of the medical profession in the community where he or she practices[,]" while "a physician who holds himself or herself out as a specialist in a particular field of medicine is measured against a standard commensurate with that of a reasonable physician practicing in that specialty[ ]"); see also Chapel, 785 P.2d at 210 (holding "that a non-board-certified general practitioner is held to the standard of care of a 'reasonably competent general practitioner acting in the same or similar community in the United States in the same or similar circumstances[,]" but limiting the opinion to general practitioners and stating that it does not affect board-certified specialists); see also Hall, 466 So. 2d at 868 n.6 (citing several cases applying a "same or similar locality" standard of care to general practitioners and a national standard of care to specialists). 138 See Hall, 466 So. 2d at 873; Travers, 672 A.2d at 570 (D.C. 1970) (stating "[i]n this jurisdiction, the applicable standard is a national standard, not just a local custom[ ]"); Goldman, 120 F.3d at 55 (applying Mississippi law); see also Kobialko v. Lopez, 576 N.E.2d 1044, 1047 (Ill. App. Ct. 1991) (reversing trial court's determination that the plaintiff patient did not establish the applicable standard of care because she presented evidence only to a international standard of care and applying Purtill, 489 N.E.2d at 867, which provided that familiarity with a national standard of care will be presumed to be familiarity with all localities).