Public Health Law Map - Beta 5 - Medical and Public Health Law Site

The locality rule is the progenitor of the debates over the proper specialty
qualifications for an expert witness. The locality rule evolved before the
standardization of medical training and certification. During this period, there was a
tremendous gulf between the skills and abilities of university- trained physicians
and the graduates of the unregulated diploma mills. In many parts of the country,
parochialism and necessity combined to create the rule that a physician’s
competence would be determined by comparison with the other physicians in the
community, or at least in similar neighboring communities. The strictest form of the
locality rule required the expert to be from the same or a similar community. This
made it nearly impossible for injured patients to find experts to support their cases,
effectively preventing most medical malpractice litigation.
The underpinnings of the locality rule are diametrically opposed to contemporary
specialty training and certification. There is no longer a justification for a rule that
shelters substandard medical decision making on the sole excuse that it is the norm
for a given community. Many states have explicitly abolished the locality rule for
physicians who hold themselves out as certified specialists. Unfortunately, the
locality rule is being reinvigorated in some states as a tort reform measure. This
resurgence is driven by the problem of access to care and facilities in rural areas.
Proponents of the locality rule often confuse access to facilities with physician
competence. A national standard of care implies that the rural physician will have
the same training and exercise the same level of judgment and diligence as an
urban practitioner. It does not require that the rural physician have the same
medical facilities available. If the community does not have facilities for an
emergency Cesarean section, the physician cannot be found negligent for failing to
do this surgery within the 15 minutes that might be the standard in a well-equipped
urban hospital.
Under a national standard, however, the physician must inform the patient of the
limitations of the available facilities and recommend prompt transfer if indicated.
This allows patients to balance the convenience of local care against the risks of
inadequate facilities. The protection of a national standard is especially important as
rural hospitals attempt to market or retain lucrative medical services that their
facilities are not properly equipped to handle.
d) The Importance of Setting Objective Standards
There have been many suggested solutions to the expert witness problem. Most of
these are defensive strategies that seek to reduce the availability of plaintiff’s
experts; they do not address the root problem of ambiguous medical practice
standards.
The best approach is to reduce the ambiguity in practice standards. While courts
will still require expert testimony, both judges and juries are very deferential
toward explicit standards of practice that are promulgated by credible professional
organizations. Since plaintiffs’ attorneys are aware of the increased difficulty in
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