The Standard of Care in Medical Malpractice

New York follows the locality rule in determining the applicable standard of care in medical malpractice cases.  Under this rule when a physician enters into a doctor/patient relationship he or she has impliedly represented that he or she possesses the “reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where he practices.”  This learning and skill is regarded as necessary to qualify him or her to engage in the practice of medicine in surgery by those who are familiar with the employment of physicians.  Additionally the law also places a duty on the doctor to possess this learning and skill.

 

When the locality rule is applied, a physician is not measured against every physician in the country but is measured only against physicians within the geographic area in which they practice medicine.  Some believe however that because medical technology has become more advanced that the standard of care has been leveling out around the country.

 

The purpose of the locality rule is to protect small-town physicians from charges of medical malpractice that could be considered unfair because holding them to the standard of care of experts in a big city would not be fair.  There are some people who believe this rule may have a negative impact on both the patient and the physician.  The locality rule may be unfair to patients because:

 

  1. Physicians may not adapt to scientific progress as quickly as they should, and
  2. The locality rule also determines who is considered to be qualified to be an expert witness and give testimony in medical malpractice cases.

 

When looking for an expert witness in a medical malpractice case under the locality rule, patients are required to find an expert witness who is familiar with the standard of care in the community where the doctor practices, or a similar community.  The case will not go to court if the victim cannot find a physician familiar with the standard of care in that community. 

 

There are also issues for physicians when it comes to the locality rule.  It can create uncertainty as to what is considered malpractice from state to state. 

 

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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