Special Rules in Medical Malpractice Cases: The Locality Rule

John Fisher
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Stopping Medical Injustice

In New York medical malpractice cases, the locality rule is very important.  Under the locality rules a doctor has a duty to possess a “reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where he practices,” and which is considered to be, by those familiar with the employment, necessary to qualify him or her to practice medicine and/or surgery.

Under this rule, a physician is not measured against every physician in the country but against only the physicians within their local area where they practice.  However, it has been argued that with advances in medical technology that how medicine is practiced should be leveling out around the country and that the standard of care should therefore be the same everywhere in the country.

The reason for this rule is to protect small town physicians from potentially unfair medical malpractice charges because it would not be fair to hold these physicians to the same standard of care as the experts in big cities.

However, it has been argued by some that the locality rule may have a negative impact on both the patient and the physician.  There are two reasons that it is believed the locality rule is unfair to patients:

  1. It may make physicians slow to adapt to scientific progress, and
  2. Who is qualified to give expert witness testimony is also determined by the locality rule.

When a patient is seeking an expert witness, under the locality rule the witness must be familiar with the standard of care practiced in the defendant doctor’s community, or a similar community.  Unfortunately, if the victim cannot find a physician who is familiar with the community’s standard of care and is willing to testify, the case will not be able to go to court.

From the physician’s perspective, the locality rule also has issues.  It can limit their liability in medical malpractice cases, which is to their benefit; however it also creates uncertainty as to what is considered to be malpractice in one state versus another.

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected]  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com

 

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