Liability by locality: Practical standard or outdated notion?
■ Some say an old rule for deciding negligence by local, versus national, care standards protects rural medicine. Others say it invites risks.
By Amy Lynn Sorrel — Posted Jan. 18, 2010
As efforts to reform the medical liability system plow forward, some jurisdictions still adhere to a long-standing rule for judging the standard of care in malpractice cases.
Whether in case law or in legislation, about 20 states maintain some version of the so-called locality rule, under which physician liability may be measured based on local practice customs instead of a national standard of care, according to a 2007 study in the Journal of the American Medical Association. The locality could be the physician's community, one similar to it, or the entire state.
The rule, which emerged in the 1880s, was intended to help protect physicians in rural areas from being held to a higher legal standard when they did not necessarily have access to the same level of training or technology as did physicians in larger, urban areas. The locality rule now largely comes into play when states adhering to the rule preclude expert witnesses giving testimony that is based on national, versus community, standards.
Some experts say the requirement still protects rural medicine by limiting "hired gun" experts not familiar with community norms. But others say the rule is outdated.
Instead of protecting physicians, the locality rule may create inconsistencies in the courts and pose additional risks if doctors are unaware of the differences between prevailing national practice standards and local legal standards, said Mark Hall, a professor at Wake Forest University's School of Law in North Carolina.
The locality rule "calls into question the notion of there being a standard" for the practice of evidence-based medicine. "We need a set of legal rules that at least permits, if not encourages, doctors to follow the more prudent approach." While the locality rule used to do that, now it is threatening that approach, Hall said.
Family physician Daniel J. Merenstein, MD, said a case he was involved in is a good example.
A Fairfax County, Va., jury in 2003 concluded Dr. Merenstein's actions fell below the statewide standard of care when he discussed the risks and benefits of a prostate-specific antigen test with a 53-year-old patient -- as national guidelines dictated -- but did not order the screening when the patient refused it.
It was later discovered the patient had prostate cancer. Jurors sided with plaintiff experts' arguments that, according to the local, or statewide, standard, doctors ordered the test as routine practice, without necessarily discussing risks and benefits with patients. The court awarded $1 million to the patient, and there was no further appeal.
"When it comes to a vast majority of what we [doctors] are doing, the knowledge should always be the same," said Dr. Merenstein, a director in the Dept. of Family Medicine at Georgetown University Medical Center in Washington, D.C. The locality rule "gives doctors another reason to practice defensive medicine."
A July 2009 advisory opinion by Virginia's attorney general reaffirmed enforcement of the state's locality rule over a national standard of care.
Such legal rules may have ramifications for patient safety if doctors, for fear of liability, are slow to incorporate scientific advances that are not the norm in a particular area, said Michelle Huckaby Lewis, MD, a visiting assistant professor at Penn State University's Milton S. Hershey Medical Center. Dr. Lewis, who is also a lawyer, co-authored the 2007 JAMA study. "From an ethical standpoint, it could create issues if what a doctor thinks is in the patient's best interest is one course of action, but the standard in that locality is a different course."
But other experts say that, while physicians recognize prevailing standards, many rural areas still lack access to the resources or specialists to carry them out.
The locality rule helps account for those discrepancies while keeping expert witness testimony in line with local practice customs, said Bruce A. Cranner. He is former chair of the Medical Liability and Health Care Law Committee for DRI, The Voice of the Defense Bar, an international trade group of civil defense attorneys.
"We have to remember the standard of care is a totally fluid concept, and it's certainly challenging for physicians who practice further away from the centers of medicine," said Cranner, a medical liability defense lawyer and partner with Frilot LLC in New Orleans. "So it does create a unique risk that the locality rule, although not as important as it once was, nevertheless still addresses."
Louisiana's locality rule, for example, holds general practitioners to a community standard, whereas specialists are held to a national standard. Many of the state's rural areas do not have ob-gyns or cardiac surgeons, and, Cranner said, internists or family doctors cannot be expected to know or follow those specialties' standards.
Rather than harming the quality of care, the rule helps attract physicians to underserved areas by minimizing their legal risk, said Stephen W. Keene, general counsel to the North Carolina Medical Society. That state also enforces the locality rule. "This keeps the legal and medical standards in sync. If we let the medical malpractice standard get out of sync with reality, it's going to undermine the overall medical infrastructure in these [rural] areas."
Plaintiff lawyers contend the rule can harm meritorious cases. "What happens is perfectly qualified experts are excluded," said Kevin J. Williams, a personal injury lawyer with Comerford & Britt LLP in North Carolina.
But physicians and defense lawyers counter that state law still allows parties to go out of state to find experts, as long as those experts can show some familiarity with the standard of care in a similar community.
Any so-called restrictions would apply equally to both parties, said Yarnell Beatty, director of legal and government affairs at the Tennessee Medical Assn., another state that recognizes the locality rule. "This is not something that medicine uses as a crutch. This whole rule was designed to be fair to both parties so [they] can't just get some hired gun coming in to testify to whatever [a party] wants he or she to say."
Conflicts in the courts
Some experts say the courts have gone too far in loosening the locality rule's application, undermining its effectiveness.
For example, in a 2006 Tennessee Court of Appeals ruling, judges in Eckler v. Allen said that under the locality rule, expert witnesses must have "personal" or "firsthand knowledge" of the community standard, which did not include interviewing other physicians in the area. In an August 2009 decision, however, appellate judges ruled in Farley v. Oak Ridge that an expert need not actually practice in an area similar to that of the defendant in order to show familiarity with that community's standard of care.
"It all comes down to, are [experts] familiar with the standard of care and what does that mean?" said Nashville, Tenn., medical liability defense lawyer Mark Smith, of Sherrard & Roe PLC. "Do they have to have practiced in a similar community, which I think it means. Or is it sufficient to go to meetings and have coffee with a few people?"
The North Carolina Supreme Court could decide the scope of that state's locality rule, following an appeals court ruling that plaintiffs only had to show the defendant doctor failed to meet one of three requirements for proving negligence with respect to the local standard of care.
Lorin J. Lapidus, a defense lawyer in the case, said the state's rule was meant to apply across the board and a uniform standard helps to reduce defensive medicine.
"If you have various standards of care for portions of the common law test [for negligence] and the community standard for one prong, then you have inconsistent results and you have a situation where any time a medical result is less than perfect, the doctor is going to be on the line," said Lapidus, of Wilson Helms & Cartledge.
The case, Swink v. Weintraub, was appealed to the state's high court, which has yet to accept it. The NCMS, the Litigation Center of the American Medical Association and State Medical Societies, and several state specialty societies plan to file a friend-of-the-court brief in the case supporting broad application of the locality rule.
Some experts suggested compromises may exist. For one, many jurisdictions abiding by national standards allow for exceptions when a lack of resources contributes to a treatment decision, Penn State's Dr. Lewis said.
In those circumstances it is reasonable for location to come into play, "but not with respect to the knowledge or skill of the treating physician," she said. For example, a physician may not have the facilities to perform an emergency C-section, but should still know when it's called for.
"We want to uphold the standard of care for patient safety but also for physician certainty, so they know if they rely on evidence, from a liability standpoint, they are protected. And at the same time if they don't have the resources available to follow the national standard of care, they are not going to be subject to liability," Dr. Lewis said.
Hall, of Wake Forest University, suggested a safe harbor protecting physicians from liability when they follow national or evidence-based guidelines -- a notion that has been considered in discussions about including medical liability reform in national health reform, with some support from the AMA and the Obama administration.
Cranner said the solution lies not in abandoning the locality rule, but in strengthening and standardizing expert witness qualifications.
Either way, medical standards should drive legal standards, not the other way around, the NCMS' Keene said.