MEDICAL PERSONNEL; MEDICAL CARE;
August 1, 2003
MEDICAL MALPRACTICE AND STANDARD OF CARE
By: Christopher Reinhart, Associate Attorney
You asked about the geographic area that is relevant to the standard of care in medical malpractice cases. You wanted to know the majority and minority rules on this issue and the rule in surrounding states. This report is a follow-up to OLR Report 2003-R-0486 that describes the standard of care in Connecticut.
Generally in a medical malpractice claim, the plaintiff must prove that the physician breached the prevailing professional standard of care. Generally, the standard of care is the level of care, skill, and treatment that, under the circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. States vary in what geographic area they consider when determining the standard of care that applies to a physician.
Treatises on medical malpractice describe changes in the law regarding the standard of care over the years. The standard of care in the late 19th century was that of the ordinary practitioner in the same community. Many jurisdictions later changed to a standard based on the “same general neighborhood” or “similar localities” with similar opportunities for experience. But the trend is to reject the locality rule and apply the standard of the profession generally, rejecting any rule based on geographic limitation in favor of a national standard.
Of the states surrounding Connecticut:
1. Massachusetts uses a national standard but allows consideration of available medical resources as a circumstance when determining the skill and care required,
2. New York uses a locality rule, and
3. Rhode Island uses a national standard.
CHANGES TO THE STANDARD OF CARE NATIONWIDE
Medical Malpractice, a treatise on malpractice law, discusses the history of the standard of care in the United States.
1. The standard of care in the late 19th century was that of the ordinary practitioner in the same community. This reflected the limited means of transportation and communication at the time and the differences between rural and urban practitioners.
2. Substantial authority later found this standard too restrictive. In many places, the standard of care was based on the “same general neighborhood” or “similar localities” with similar opportunities for experience.
3. This rule is now mostly abandoned. Courts have recognized a national standard because of the changes brought by modern transportation and communications.
4. Under the “modern formulation,” a physician is bound to possess the ordinary skill, learning, and experience of his profession generally at the time, in any locality with similar opportunities for experience. The question is whether the physician exercised the care and skill of the average qualified practitioner accounting for advances in the profession. The medical resources available to the practitioner are a relevant circumstance that allows the jury to distinguish between facilities and opportunities for continuing education in rural and urban areas. But customary practice in rural areas is not the sole measure of the standard and if an area lacks facilities or specialized expertise, the patient should be advised of where to seek the facilities.
The continuing trend is to reject the locality rule and apply the standard of the profession generally, rejecting any rule based on geographic limitation in favor of a national standard. This is especially true for specialists. But many jurisdictions use the “same or similar community, neighborhood, or locality” rule. (Louisell, Medical Malpractice, updated to 2003).
We surveyed the standard of care in the three surrounding states.
Massachusetts adopted a national standard in 1968. A general practitioner must exercise the degree of care and skill of the average qualified practitioner, taking into account the advances in the profession. The medical resources available to the physician are one circumstance in determining the skill and care required, which makes some allowance for the type of community where the physician practices. A specialist is held to the standard of care and skill of the average member of the profession in the specialty, taking into account the advances in the profession (also considering available medical resources) (Brune v. Belinkoff, 235 N. E. 2d 793 (Mass. 1968)).
New York retains a locality rule. A doctor must exercise the reasonable degree of learning and skill ordinarily possessed by physicians and surgeons in the locality where the doctor practices (Pike v. Honsinger, 49 N. E. 760 (1898)). A doctor must use due care, as measured against the conduct of his peers. Due care requires a doctor to use his best judgment in using his skill and knowledge. A doctor must use his best judgment and whatever superior knowledge and skill he has, even if it exceeds that of the average doctor or specialist in the community where he practices (Nestrowich v. Ricotta, 767 N. E. 2d 125 (N. Y. 2002)).
Rhode Island adopted a national standard in 1998. A physician has a duty to use the degree of care and skill that is expected of a reasonably competent practitioner in the same class to which he or she belongs, acting in the same or similar circumstances (Sheeley v. Memorial Hospital, 710 A. 2d 161 (R. I. 1998)).