Shilkret v. Annapolis Emergency Hosp. Ass'n, Etc, 276 Md. 187 (Md. 1975)

Levine, J.,

delivered the opinion of the Court.

In this appeal, which stems from a negligence action brought against several physicians and a hospital, we are asked to decide upon the proper standard of care to be applied in medical malpractice cases.

At the trial of the case in the Circuit Court for Anne Arundel County, the court (Wray, J.) ruled that the standard to be applied was the “strict locality” rule (the standard of care exercised by physicians in the defendant’s own community or locality), and since appellants, who were plaintiffs below, had failed to meet the requirements of that rule, directed a verdict for appellees. The Court of Special Appeals affirmed that decision in an unreported per curiam opinion. Shilkret v. Annapolis Emergency Hospital Association T/A The Anne Arundel General Hospital, et al., [No. 83, September Term, 1974, filed November 12, 1974]. We granted certiorari for the limited purpose of deciding whether the Court of Special Appeals was correct in holding “that [in Maryland] the ‘Strict Locality Rule’ must be applied” in medical malpractice cases.

According to the agreed statement of facts filed in lieu of a record extract, the infant plaintiff, Mark Alan Shilkret, was born at the Anne Arundel General Hospital (Anne Arundel) on December 22, 1968, and has been continuously institutionalized since that date because of brain damage

that appellants allege resulted from intracranial bleeding caused by negligence at delivery. This was allegedly complicated by subsequent treatment rendered by appellees, the various attending physicians and the hospital. The several physicians who are appellees here include two obstetricians who treated the mother throughout the prenatal stage and then delivered the infant, an anesthesiologist in attendance at birth, and a pediatrician at the hospital who allegedly examined the infant the day after his birth.1

At the trial, after excerpts from the depositions of the four defendant-physicians had been admitted in evidence, argument ensued over the applicable standard of care. When the court indicated that it would apply “the strict locality rule,” appellants conceded that they could not prove their case against appellees under that standard and requested leave to make a proffer of expert medical testimony which “could meet any other rule in medical negligence cases.” They were afforded this opportunity and proceeded with extensive statements of what their two experts, an obstetrician-gynecologist and a neurosurgeon, would say if called as witnesses. Each expert had an impressive curriculum vitae.

The proffered testimony of the obstetrician-gynecologist established that Anne Arundel belongs to the American Hospital Association, one of several members of the accrediting body known as the Joint Commission on Accreditation of Hospitals.2 It was his opinion that all hospitals belonging to this group meet a national standard in caring for obstetrical patients. At the time of the infant’s birth, the witness had been chief of the obstetrical-gynecological services at the U. S. Army Hospital at Aberdeen Proving Ground. He believed that in this branch of medicine, the standards at Anne Arundel were the same as those observed at Aberdeen and at all other accredited

hospitals in the United States. Similarly, as a member of the American College of Gynecologists and Obstetricians, and being board certified, he believed that a national standard of care applied to those with the same qualifications. He then detailed how the failure of the four physicians and the hospital to meet the national standards of care applicable to them resulted in the injury to the plaintiff.

The other expert witness whose testimony was proffered would have stated in some detail that he was employed as a neurosurgeon at the National Institutes of Health at Bethesda, Maryland, that a national standard of care is observed in the diagnosis and treatment of neurological diseases, the knowledge of which is also possessed by general practitioners, and that each of the defendants had violated what he believed to be a national standard regarding the care of newborn infants.

Following these proffers, the trial judge granted each appellee’s motion for a directed verdict. He adhered to his previously pronounced belief that the “strict locality” standard applies in Maryland, rather than the “national” (in which the standard of care is not tied to a particular geographic locality) or “similar locality” (the standard of care observed by physicians of ordinary skill and care in either the defendant-physician’s locality or in a similar community) tests urged by appellants, and therefore ruled that the latter had failed to present a sufficient case for the jury. The Court of Special Appeals affirmed, holding that its own prior cases — and the decisions of this Court — compelled this result. For reasons that follow, we reverse.

The general principles which ordinarily govern in negligence cases also apply in medical malpractice claims. Benson v. Mays, 245 Md. 632, 636, 227 A. 2d 220 (1967); Sub. Hospital Ass’n v. Mewhinney, 230 Md. 480, 484, 187 A. 2d 671 (1963). Therefore, as in any other case founded upon negligent conduct, the burden of proof rests upon the plaintiff in a medical malpractice case co show a lack of the requisite skill or care on the part of the defendant. Id. But, whereas the conduct of the average layman charged with

negligence is evaluated in terms of the hypothetical conduct of a reasonably prudent person acting under the same or similar circumstances, the standard applied in medical malpractice cases must also take into account the specialized knowledge or skill of the defendant. W. Prosser, Torts § 32 (4th ed. 1971); McCoid, The Care Required Of Medical Practitioners, 12 Vand. L. Rev. 549, 558 (1959). The formulation of a standard of care that is consistent with these well established tort principles, but which is fair to both the patient and his physician, has troubled the courts for the past century.

Recently, in Raitt v. Johns Hopkins Hospital, 274 Md. 489, 499-500, 336 A. 2d 90 (1975), where we held that an expert medical witness need not necessarily reside or practice in the defendant’s community to testify as to the applicable standard of care in a medical malpractice case, we intimated that despite the plethora of reported medical malpractice decisions in Maryland, this Court actually had never been confronted with the need to adopt a standard of care from among the three we have mentioned.

In State, use of Janney v. Housekeeper, 70 Md. 162, 172, 16 A. 382 (1889), the standard of care which this Court applied was “. . . that reasonable degree of care and skill which physicians and surgeons ordinarily exercise in the treatment of their patients . . . .” Accord, Dashiell v. Griffith, 84 Md. 363, 380-81, 35 A. 1094 (1896) (“the amount of care, skill and diligence required is not the highest or greatest, but only such as is ordinarily exercised by others in the profession generally”); cf. McClees v. Cohen, 158 Md. 60, 66, 148 A. 124 (1930). As we noted in Raitt, this rule, which makes no reference to the defendant-physician’s community, was followed in this state prior to 1962. See Lane v. Calvert, 215 Md. 457, 462, 138 A. 2d 902 (1958) (standard of care “such as is ordinarily exercised by others in the profession generally”). Indeed, it has been quoted occasionally since 1962. Nolan v. Dillon, 261 Md. 516, 534, 276 A. 2d 36 (1971) (standard of care “such as is ordinarily exercised by others in the profession generally”); Johns Hopkins Hospital v. Genda, 255 Md. 616, 620, 258 A. 2d 595 (1969) (“the standard

of skill and care ordinarily exercised by surgeons in cases of this kind”), accord, Anderson v. Johns Hopkins Hosp., 260 Md. 348, 350, 272 A. 2d 372 (1971).

This Court applied the strict locality rule for the first time in State, use of Solomon v. Fishel, 228 Md. 189,179 A. 2d 349 (1962), the purported authority for this proposition in Maryland. It is important to note, however, that Fishel did not turn on the standard of care issue, but dealt with the proper use of hypothetical questions addressed to medical experts and with a jury instruction involving the plaintiffs burden of proof. Similarly, although references to the strict locality rule, citing Fishel, appear in Tempchin v. Sampson, 262 Md. 156, 277 A. 2d 67, 51 A.L.R.3d 1268 (1971), and Kruszewski v. Holz, 265 Md. 434, 290 A. 2d 534 (1972), we were not directly confronted with the standard of care issue in either of those cases.

The only reported decision to flatly hold that the strict locality rule applies in Maryland is Dunham v. Elder, 18 Md. App. 360, 306 A. 2d 568 (1973), which we did not have occasion to review. There, the Court of Special Appeals read Fishel to stand for the application of the stricter rule. In applying the same-rule in this case, the two courts below relied heavily on Dunham, but we hasten to point out that the portents in Raitt were not yet available to them.

In any event, we now explicitly decide for the first time this question of the standard of care to be applied in medical malpractice cases. It should hardly come as a surprise that appellants advocate the adoption of the national standard or, alternatively, the similar locality rule. They claim that their proof satisfied both tests. Appellees, on the other hand, contend for the strict locality rule.

In addressing this issue, we note at the outset that we are dealing with two types of defendants, physicians and hospitals.

(1)

The Standard of Care Applicable to Physicians

The earliest traces of the strict locality rule appeared a

century ago. Smothers v. Hanks, 34 Iowa 286 (1872); Tefft v. Wilcox, 6 Kan. 46 (1870); Hathorn v. Richmond, 48 Vt. 557, 559 (1876) (“such skill as doctors in the same general neighborhood, in the same general lines of practice, ordinarily have and exercise in like cases”). It is an exclusive product of the United States; possibly because of the difference in the size of the two countries, the English courts have never developed such a principle. Waltz, The Rise And Gradual Fall Of The Locality Rule In Medical Malpractice Litigation, 18 DePaul L. Rev. 408 (1969). The rule was unquestionably developed to protect the rural and small town practitioner, who was presumed to be less adequately informed and equipped than his big city brother. Id. The court reasoned with what was then unassailable logic in Tefft v. Wilcox, supra, 6 Kan. at 63-64:

In short, the rationale underlying the development of the strict locality rule a century ago was grounded in the manifest inequality existing in that day between physicians practicing in large urban centers and those practicing in remote rural areas.

Ultimately, the rule came under sharp attack on two grounds. First, “[i]t effectively immunized from malpractice liability any doctor who happened to be the sole practitioner

in his community. He could be treating bone fractures by the application of wet grape leaves and yet remain beyond the criticism of more enlightened practitioners from other communities.” Waltz, supra at 411. Secondly, a “conspiracy of silence” in the plaintiffs locality could effectively preclude any possibility of obtaining expert medical testimony. Note, 40 Fordham L. Rev. 435, 438 (1971).3

Whatever may have justified the strict locality rule fifty or a hundred years ago, it cannot be reconciled, with the realities of medical practice today.4 “New techniques and discoveries are available to all doctors within a short period of time through medical journals, closed circuit television presentations, special radio networks for doctors, tape recorded digests of medical literature, and current correspondence courses.” Note, An Evaluation Of Changes In The Medical Standard Of Care, 23 Vand. L. Rev. 729, 732 (1970). More importantly, the quality of medical school training itself has improved dramatically in the last century. Where early medical education consisted of a course of lectures over a period of six months, which was supplemented by apprenticeships with doctors who had even less formal education, there now exists a national accrediting system which has contributed to the standardization of medical schools throughout the country. Id. n. 16.

A distinct minority of states, however, cling to the strict locality rule. Horton v. Vickers, 142 Conn. 105, 111 A. 2d 675, 679 (1955) (“in the same general neighborhood”), accord,

Levett v. Etkind, 158 Conn. 567, 265 A. 2d 70, 41 A.L.R.3d 1343 (1969); Lockart v. Maclean, 77 Nev. 210, 361 P. 2d 670 (1961); Gandara v. Wilson, 85 N. M. 161, 509 P. 2d 1356, 1358 (1973) (“recognized standards of medical practice in the community”); see Bertrand v. Aetna Casualty & Surety Company, 306 So. 2d 343, 347 (La. App. 1975) (“in the same community or locality”). Nevertheless, recognizing the significant developments which have occurred in the training and practice of medicine, and the population shifts which have marked the increased urbanization of our society, a majority of American courts have now abandoned the strict locality rule as being too narrow. We, too, conclude that it can be sustained no longer given the current state of medical science.

We have noted that one of the earliest applications of the similar locality rule occurred in Small v. Howard, supra, 128 Mass, at 136, where, essentially for the same reasons that have traditionally undergirded the strict locality rule, the court enunciated as the standard: “ ‘that skill only which physicians and surgeons of ordinary ability and skill, practising in similar localities, with opportunities for no larger experience, ordinarily possess’ ”; thus the defendant “ ‘was not bound to possess that high degree of art and skill possessed by eminent surgeons practising in large cities, and making a specialty of the practice of surgery.’ ”

A plurality, if not a majority, of states apply the similar locality rule. Sinz v. Owens, 33 Cal. 2d 749, 205 P. 2d 3, 5, 8 A.L.R.2d 757 (1949) (“ ‘same locality’ or ‘vicinity’ ”); McGulpin v. Bessmer, 241 Iowa 1119, 43 N.W.2d 121, 126 (1950) (“under like circumstances and in like localities”); Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 510 P. 2d 190, 195 (1973) (“ ‘in the community where he practices or similar communities’ ”); Mecham v. McLeay, 193 Neb. 457, 227 N.W.2d 829, 832 (1975) (“in the same neighborhood and in similar communities”); Wiggins v. Piver, 276 N. C. 134, 171 S.E.2d 393 (1970); Runyon v. Reid, 510 P. 2d 943, 950 (Okla. 1973) (“by similar specialist ... in the same or similar communities”); Incollingo v. Etving, 444 Pa. 263, 282 A. 2d 206, 214 n. 5a (1971) (“in the same or a

similar locality or community”); Hundley v. Martinez, 151 W. Va. 977, 158 S.E.2d 159, 169 (1967); see also Williams v. Chamberlain, 316 S.W.2d 505, 510 (Mo. 1958); Cavallaro v. Sharp, 84 R. I. 67,121 A. 2d 669, 672 (1956).

The similar locality rule answers some of the criticism aimed at the strict locality standard by enabling the plaintiff to obtain expert witnesses from different communities, thus reducing the likelihood of their acquaintance with the defendant. It does not, however, effectively alleviate the other potential problem, a low standard of care in some of the smaller communities, because the standard in similar communities is apt to be the same. Another criticism leveled at the similar locality rule is the difficulty which arises in defining a “similar” locality.5 For these reasons, the similar locality rule is regarded as no more than a slight improvement over the stricter standard.

These deficiencies in the locality rules and the increasing emphasis on the availability of medical facilities have led some courts to dilute the rules by extending geographical boundaries to include those centers that are readily accessible for appropriate treatment. See generally Sinz v. Owens, supra; Gist v. French, 136 Cal.App.2d 247, 288 P. 2d 1003 (1955); McGulpin v. Bessmer, supra; Josselyn v. Dearborn, 143 Me. 328, 62 A. 2d 174 (1948); Viita v. Dolan, 132 Minn. 128,155 N. W. 1077 (1916); Tvedt v. Haugen, 70 N. D. 338, 294 N. W. 183, 132 A.L.R. 379 (1940). This expanded rule, expressed in terms of “medical neighborhood” or “medical locality,” has paved the way for the national standard. In any event, the trend continues away from standards which rest solely on geographic considerations.

Ever-increasing emphasis on medical specialization has accelerated the erosion of the locality rules and the concomitant emergence of the so-called national standard.6 Even within the framework of the locality rules, it has been generally accepted that where a physician holds himself out as a specialist, he is held to a higher standard of knowledge and skill than a general practitioner. Some courts, therefore, have abandoned the locality rules for a national standard only as to specialists. Kronke v. Danielson, 108 Ariz. 400, 499 P. 2d 156, 159 (1972) (“the standard of care required of physicians in the same specialty practiced by the defendant”); Brune v. Belinkoff, supra, 235 N.E.2d at 798 (“a specialist should be held to the standard of care and skill of the average member of the profession practising the specialty, taking into account the advances in the profession”);7 Naccarato v. Grob, 384 Mich. 248, 180 N.W.2d 788, 791 (1970) (“that of a reasonable specialist practicing medicine in the light of present day scientific knowledge”); Christy v. Saliterman, 288 Minn. 144,179 N.W.2d 288 (1970); see Belk v. Schweizer, 268 N. C. 50, 149 S.E.2d 565, 21 A.L.R.3d 944 (1966). This is consistent with the position of the American Law Institute which otherwise adopts the similar locality rule.8

Were we to adopt a standard tied to locality for specialists, we would clearly be ignoring the realities of medical life. As we have indicated, the various specialties have established uniform requirements for certification. The national boards dictate the length of residency training, subjects to be covered, and the examinations given to the candidates for certification. Since the medical profession itself recognizes national standards for specialists that are not determined by geography, the law should follow suit.

The courts in another group of cases, however, have gone further, and have adopted this same standard of care — one which is not governed by the locality of the defendant — for all physicians regardless of whether they are specialists or not. Blair v. Eblen, 461 S.W.2d 370, 372-73 (Ky. 1970) (“that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances”); Pederson v. Dumouchel, 72 Wash. 2d 73, 431 P. 2d 973, 978, 31 A.L.R.3d 1100 (1967) (“that degree of care and skill which is expected of the average practitioner in the class to which he belongs, acting in the same or similar circumstances”), 9 accord, Douglas v. Bussabarger, 78 Wash. 2d 476, 438 P. 2d 829, 837-38 (1968); Shier v. Freedman, 58 Wis. 2d 269, 206 N.W.2d 166, 174 (1973) (“that degree of care and skill which is exercised by the average practitioner in the class to which he belongs, acting in the same or similar circumstances”).

We agree with these courts that justification for the locality rules no longer exists. The modern physician bears little resemblance to his predecessors. As we have indicated at length, the medical schools of yesterday could not possibly compare with the accredited institutions of today, many of which are associated with teaching hospitals. But the contrast merely begins at that point in the medical career: vastly superior postgraduate training, the dynamic impact of modern communications and transportation, the proliferation of medical literature, frequent seminars and conferences on a variety of professional subjects, and the growing availability of modern clinical facilities are but some of the developments in the medical profession which combine to produce contemporary standards that are not only much higher than they were just a few short years ago, but also are national in scope.

In sum, the traditional locality rules no longer fit the present-day medical malpractice case.

Moreover, while a specialist may be held to greater skill and knowledge in his particular field than would be required of a general practitioner under the same or similar circumstances, one standard can be fashioned for all physicians as the Kentucky, Washington and Wisconsin courts have carefully demonstrated. To that extent, there is no valid basis for distinguishing between general practitioners and specialists in applying standards of care. Although national board certification in the specialties has contributed significantly to standardization on a nationwide scale, all of the other reasons which justify a national standard of care apply with equal validity to general practitioners.

Nevertheless, in one important respect there is even a difference of opinion among those three courts and the Massachusetts court. As we noted earlier, the Massachusetts court articulated two standards, one for the “average qualified practitioner” and the other for the “average member of the profession practising [a] specialty.” Brune v. Belinkoff, supra, 235 N.E.2d at 798 (emphasis added). Similarly, the Washington court framed its standard in

terms of “an average, competent practitioner,” Pederson v. Dumouchel, 431 P. 2d at 978 (emphasis added), and the Wisconsin court postulated its rule for the “average practitioner,” Shier v. Freedman, supra, 206 N.W.2d at 174 (emphasis added). The Kentucky Court of Appeals, however, substituted “the term ‘reasonably competent’ for the term ‘average’ used in the Washington Court’s definition.” Blair v. Eblen, supra, 461 S.W.2d at 373.

In eschewing the term “average,” the Kentucky court sided with the American Law Institute, which, in comment e to Restatement (Second) of Torts § 299 A (1965), states:

Or, as one learned scholar aptly stated, “. . . a true ‘average’ would involve an uneasy aggregation of the best and the worst, the experienced and the inexperienced, the quack and the specializing medical doctor. It has never been suggested that the law strikes the average from so diverse a grouping.” Waltz, supra at 409 n.l. Although “average” is probably expressed in the sense of “ordinary,” this meaning may not be conveyed to the jury despite an explicit instruction on the point. McCoid, supra at 559.

We align ourselves with the Kentucky court and hold that a physician is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances. Under this standard, advances in the profession, availability of facilities, specialization or general practice, proximity of specialists

and special facilities, together with all other relevant considerations, are to be taken into account.

(2)

The Standard of Care Applicable to Hospitals

In reviewing some of our medical malpractice decisions earlier, we intimated that neither of the locality rules has been applied in Maryland where a hospital has been the defendant. Anderson v. Johns Hopkins Hosp., Johns Hopkins Hospital v. Genda, both supra. Equally significant is the absence in our prior cases of any distinction between physicians and hospitals regarding the applicable standard of care. As the court stated in Pederson v. Dumouchel, supra, 431 P. 2d at 978, “[m]uch that we have said [in articulating the standard of care applicable to physicians] also applies to the jury instructions given concerning hospitals. They, too, are members of national organizations and subject to accreditation.” Courts elsewhere have tended to apply the same standards to hospitals that they apply to physicians. Avey v. St. Francis Hosp., 201 Kan. 687, 442 P. 2d 1013, 1022 (1968) (“similar communities”); Carrigan v. Roman Catholic Bishop, 104 N. H. 73, 178 A. 2d 502, 503 (1962) (“same or similar localities”); cf. Darling v. Charleston Community Memorial Hosp., 50 Ill.App.2d 253, 200 N.E.2d 149 (1964), aff'd, 33 Ill. 2d 326, 211 N.E.2d 253, 14 A.L.R.3d 860 (1965), cert. denied, 382 U. S. 946, 86 Sup. Ct. 1204, 16 L.Ed.2d 209 (1966); see generally Note, NonResident Expert Testimony On Local Hospital Standards. 18 Clev. St. L. Rev. 493 (1969).

The only case, of which we are aware, to make a distinction of any kind between physicians and hospitals is Duling v. Bluefield Sanitarium, Inc., 149 W. Va. 567, 142 S.E.2d 754, 764 (1965). There, the court, although adhering to the similar locality rule in medical malpractice cases, held that an action brought against a hospital because of a nurse’s carelessness, as distinguished from that of a physician, is founded solely on negligence and want of due care. Hence, the proper standard was held to be “reasonable care.”

In Dickinson v. Mailliard, 175 N.W.2d 588, 596, 36 A.L.R.3d 425 (Iowa 1970), the court, in adopting as a standard “that which obtains in hospitals generally under similar circumstances,” stated:

We think the same reasoning is apposite here. Hospitals in general, and Anne Arundel in particular, are accredited by the Joint Commission on Accreditation. This group establishes national standards to which all hospitals seeking accreditation must conform. In addition, hospitals in Maryland are subject to a rigorous regulatory scheme which promotes statewide standards. See Maryland Code (1957, 1971 Repl. Vol.) Art. 43, §§ 556 et. seq. These factors, together with much of what we said earlier regarding physicians, warrant the adoption of a standard of care for hospitals which conforms to that applied in cases against physicians.

We hold, therefore, that a hospital is required to use that degree of care and skill which is expected of a reasonably competent hospital in the same or similar circumstances. As in cases brought against physicians, advances in the profession, availability of special facilities and specialists, together with all other relevant considerations, are to be taken into account.

Here, there was evidence that there is a national standard

of care for accredited hospitals in the prenatal, intrapartum and perinatal periods of pregnancy. Similarly, the evidence proffered by appellants showed national standards of care for child delivery, infant care, and the treatment of neurological problems generally, and the measure of vital functions specifically, that are observed by specialists and general practitioners alike. Under our holdings here, this evidence was sufficient to take the standard of care issue to the jury as to all of the appellees. Our review, as we observed at the outset, has been limited to this question. Whether the evidence was sufficient to establish a failure to comply with the applicable standards of care, and, if so, whether said failure directly caused the injuries sustained by the infant plaintiff, are questions which we do not reach here.