553 F.2d 123
179 U.S.App.D.C. 389
Jay ROBBINS, M.D., Individually and as Administrator of the
Estate of James Alan Robbins, Deceased, and as Legal
Representative of James Alan Robbins, Deceased, and Joan
Robbins, Individually and as Legal Representative of James
Alan Robbins, Deceased, Appellants,
v.
Marvin FOOTER, M.D., et al.
No. 75-1988.
United States Court of Appeals,
District of Columbia Circuit.
Argued Sept. 10, 1976.
Decided Jan. 21, 1977.
Rehearing Denied March 4, 1977.
Robert J. Stanford, Washington, D.C., for appellants.
Thomas J. Scanlon, Cleveland, Ohio, for appellees.
Before TAMM, MacKINNON and WILKEY, Circuit Judges.
Opinion for the Court filed by TAMM, Circuit Judge.
TAMM, Circuit Judge:
This is an appeal from a district court judgment in favor of the defendant-appellee Doctor Marvin P. Footer denying the malpractice claim of plaintiffs-appellants Jay H. and Joan Robbins. The Robbins allege error by the trial court in the disqualification of Dr. S. Edward Davis as an expert witness on the issue of whether Dr. Footer, as a specialist certified by the American Board of Obstetrics and Gynecology, breached the standard of care required in the delivery of the Robbins' child, James Alan Robbins, who died shortly after his birth. They argue that the court erroneously required Dr. Davis to establish his familiarity with the local medical practice in the District of Columbia. We hold that both the trial court's disqualification of Dr. Davis and its instructions to the jury were inappropriately based on the "same or similar locality" rule which should not be applied to physicians who hold themselves out as nationally certified specialists. We vacate the judgment of the district court and remand the case for a new trial based upon a national standard of care.
I. FACTUAL BACKGROUND
James Alan Robbins was born in a depressed respiratory condition requiring emergency resuscitation. His condition continued to worsen and he died within eight hours of his birth. The child's parents brought suit in the United States District Court for the District of Columbia against Dr. Footer, the attending physician, and George Washington University Hospital. The Robbins alleged that the intense and frequent uterine contractions which occurred after Dr. Footer administered the drug "pitocin" to stimulate Mrs. Robbins' labor process sharply limited their child's supply of oxygen, jeopardizing his life and rendering him highly susceptible to injury from the subsequent forceps delivery. The district court granted George Washington Hospital a directed verdict which the appellants do not challenge. The Robbins' claim against Dr. Footer, however, was submitted to the jury on the basis of the testimony of Dr. Karlis Adamsons that Dr. Footer had not complied with the national standard of care for specialists in obstetrics which was recognized in the District of Columbia as it was throughout the United States.
The testimony of Dr. S. Edward Davis, a second expert witness, was rejected by the district judge because Dr. Davis could not say that he was familiar with the standard of care in the District of Columbia. Out of the presence of the jury, Dr. Davis testified that the standard of care for obstetricians was based on a uniform national examination and on information available in scientific journals with national circulation. J.A. at 7-8. He also stated, however, that the actual common practice in Washington, D.C. was more lax than the national standard applied at the Medical College of Virginia in Richmond where he had been practicing before moving to the National Institutes of Health, J.A. at 20-22, and that he was not aware of a standard of care for obstetricians in the District of Columbia that differed from the national standard. The trial judge ruled that Dr. Davis was not qualified to testify as to the standard of care required of the defendant under the rule, applicable in the District of Columbia, that a physician must exercise the care ordinarily exercised by the members of his profession in his own or similar locality. J.A. at 14, 38-40.
The case was submitted to the jury under instructions which also followed the same or similar locality standard of care rule. The jury returned a verdict for the defendant and judgment was entered on that verdict. The Robbins' then filed this appeal arguing that the exclusion of Dr. Davis as an expert witness was error.
II. STANDARD OF CARE
The conduct of a defendant in a negligence suit is usually measured against the conduct of a hypothetical reasonably prudent person acting under the same or similar circumstances. W. Prosser, The Law of Torts § 32, at 150 (1971). In medical malpractice cases, however, courts have required that the specialized knowledge and skill of the defendant must be taken into account. Id. at 161. Although the law has thus imposed a higher standard of care on doctors, it has tempered the impact of that rule by permitting the profession, as a group, to set its own legal standards of reasonable conduct. Whether a defendant has or has not conformed his conduct to a customary practice is generally only evidence of whether he has acted as a reasonably prudent person. See Hellweg v. Chesapeake & Potomac Telephone Co.,71 App.D.C. 346, 110 F.2d 546, 548 (1940); McCoid, The Care Required of Medical Practitioners, 12 Vand.L.Rev. 549, 605-06 (1959). In a malpractice case, however, the question of whether the defendant acted in conformity with the common practice within his profession is the heart of the suit. McCoid, supra at 606. As part of his prima facie case a malpractice plaintiff must affirmatively prove the relevant recognized standard of medical care exercised by other physicians and that the defendant departed from that standard when treating the plaintiff. Price v. Neyland, 115 U.S.App.D.C. 355, 320 F.2d 674, 677 (1963). In almost all cases the plaintiff must present expert witnesses since the technical complexity of the facts and issues usually prevents the jury itself from determining both the appropriate standard of care and whether the defendant's conduct conformed to that standard. In such cases there can be no finding of negligence without expert testimony to support it. Brown v. Keaveny, 117 U.S.App.D.C. 117, 326 F.2d 660, 661 (1963); cf. Canterbury v. Spence, 150 U.S.App.D.C. 263, 464 F.2d 772, 791-92 & n. 119 (dictum), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972).
The Robbins' claim that Dr. Footer's administration of a labor stimulating drug under the monitoring procedures he followed constituted actionable negligence, raises questions of substantial technical complexity well beyond the competence of the ordinary untutored lay person.
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553 F.2d 123
179 U.S.App.D.C. 389
Jay ROBBINS, M.D., Individually and as Administrator of the
Estate of James Alan Robbins, Deceased, and as Legal
Representative of James Alan Robbins, Deceased, and Joan
Robbins, Individually and as Legal Representative of James
Alan Robbins, Deceased, Appellants,
v.
Marvin FOOTER, M.D., et al.
No. 75-1988.
United States Court of Appeals,
District of Columbia Circuit.
Argued Sept. 10, 1976.
Decided Jan. 21, 1977.
Rehearing Denied March 4, 1977.
Robert J. Stanford, Washington, D.C., for appellants.
Thomas J. Scanlon, Cleveland, Ohio, for appellees.
Before TAMM, MacKINNON and WILKEY, Circuit Judges.
Opinion for the Court filed by TAMM, Circuit Judge.
TAMM, Circuit Judge:
This is an appeal from a district court judgment in favor of the defendant-appellee Doctor Marvin P. Footer denying the malpractice claim of plaintiffs-appellants Jay H. and Joan Robbins. The Robbins allege error by the trial court in the disqualification of Dr. S. Edward Davis as an expert witness on the issue of whether Dr. Footer, as a specialist certified by the American Board of Obstetrics and Gynecology, breached the standard of care required in the delivery of the Robbins' child, James Alan Robbins, who died shortly after his birth. They argue that the court erroneously required Dr. Davis to establish his familiarity with the local medical practice in the District of Columbia. We hold that both the trial court's disqualification of Dr. Davis and its instructions to the jury were inappropriately based on the "same or similar locality" rule which should not be applied to physicians who hold themselves out as nationally certified specialists. We vacate the judgment of the district court and remand the case for a new trial based upon a national standard of care.
I. FACTUAL BACKGROUND
James Alan Robbins was born in a depressed respiratory condition requiring emergency resuscitation. His condition continued to worsen and he died within eight hours of his birth. The child's parents brought suit in the United States District Court for the District of Columbia against Dr. Footer, the attending physician, and George Washington University Hospital. The Robbins alleged that the intense and frequent uterine contractions which occurred after Dr. Footer administered the drug "pitocin" to stimulate Mrs. Robbins' labor process sharply limited their child's supply of oxygen, jeopardizing his life and rendering him highly susceptible to injury from the subsequent forceps delivery. The district court granted George Washington Hospital a directed verdict which the appellants do not challenge. The Robbins' claim against Dr. Footer, however, was submitted to the jury on the basis of the testimony of Dr. Karlis Adamsons that Dr. Footer had not complied with the national standard of care for specialists in obstetrics which was recognized in the District of Columbia as it was throughout the United States.
The testimony of Dr. S. Edward Davis, a second expert witness, was rejected by the district judge because Dr. Davis could not say that he was familiar with the standard of care in the District of Columbia. Out of the presence of the jury, Dr. Davis testified that the standard of care for obstetricians was based on a uniform national examination and on information available in scientific journals with national circulation. J.A. at 7-8. He also stated, however, that the actual common practice in Washington, D.C. was more lax than the national standard applied at the Medical College of Virginia in Richmond where he had been practicing before moving to the National Institutes of Health, J.A. at 20-22, and that he was not aware of a standard of care for obstetricians in the District of Columbia that differed from the national standard. The trial judge ruled that Dr. Davis was not qualified to testify as to the standard of care required of the defendant under the rule, applicable in the District of Columbia, that a physician must exercise the care ordinarily exercised by the members of his profession in his own or similar locality. J.A. at 14, 38-40.
The case was submitted to the jury under instructions which also followed the same or similar locality standard of care rule. The jury returned a verdict for the defendant and judgment was entered on that verdict. The Robbins' then filed this appeal arguing that the exclusion of Dr. Davis as an expert witness was error.
II. STANDARD OF CARE
The conduct of a defendant in a negligence suit is usually measured against the conduct of a hypothetical reasonably prudent person acting under the same or similar circumstances. W. Prosser, The Law of Torts § 32, at 150 (1971). In medical malpractice cases, however, courts have required that the specialized knowledge and skill of the defendant must be taken into account. Id. at 161. Although the law has thus imposed a higher standard of care on doctors, it has tempered the impact of that rule by permitting the profession, as a group, to set its own legal standards of reasonable conduct. Whether a defendant has or has not conformed his conduct to a customary practice is generally only evidence of whether he has acted as a reasonably prudent person. See Hellweg v. Chesapeake & Potomac Telephone Co.,71 App.D.C. 346, 110 F.2d 546, 548 (1940); McCoid, The Care Required of Medical Practitioners, 12 Vand.L.Rev. 549, 605-06 (1959). In a malpractice case, however, the question of whether the defendant acted in conformity with the common practice within his profession is the heart of the suit. McCoid, supra at 606. As part of his prima facie case a malpractice plaintiff must affirmatively prove the relevant recognized standard of medical care exercised by other physicians and that the defendant departed from that standard when treating the plaintiff. Price v. Neyland, 115 U.S.App.D.C. 355, 320 F.2d 674, 677 (1963). In almost all cases the plaintiff must present expert witnesses since the technical complexity of the facts and issues usually prevents the jury itself from determining both the appropriate standard of care and whether the defendant's conduct conformed to that standard. In such cases there can be no finding of negligence without expert testimony to support it. Brown v. Keaveny, 117 U.S.App.D.C. 117, 326 F.2d 660, 661 (1963); cf. Canterbury v. Spence, 150 U.S.App.D.C. 263, 464 F.2d 772, 791-92 & n. 119 (dictum), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972).
The Robbins' claim that Dr. Footer's administration of a labor stimulating drug under the monitoring procedures he followed constituted actionable negligence, raises questions of substantial technical complexity well beyond the competence of the ordinary untutored lay person. Thus expert guidance was required and the Robbins offered the testimony of Drs. Adamsons and Davis. Dr. Adamsons' testimony, that the applicable standard of care for board certified specialists in obstetrics, like Dr. Footer, was uniform throughout the country and that Dr. Footer's practice fell below this national standard, was admitted into evidence before the jury. The proffered testimony of Dr. Davis to the same effect was rejected by the trial court, however, because he stated that the common practice in the District did not meet the strictures of the national standard and that he was not familiar with a standard of care which differed from the national standard.
The critical issue presented by this appeal is whether the standard of care required of a physician who holds himself out as a specialist in obstetrics, certified by a national board of examiners, should be determined by the practice within his profession nationally or by the practice among a more geographically circumscribed subset of his colleagues. The district court's exclusion of Dr. Davis's testimony and its instructions to the jury as to the applicable standard of care were based on its conclusion that Dr. Footer was only required to exercise that degree of care and skill ordinarily exercised by obstetricians in his community or in a similar locality. Since Dr. Davis stated that the common practice in the District differed from the national standard which was followed in Richmond, Virginia, where he had practiced, the trial court ruled that he was not qualified to testify to the standard of care required of Dr. Footer in the District of Columbia.
Geographic limitations on the appropriate reference group for establishing the standard of care which the law of negligence requires of a doctor first appeared in American decisions of the nineteenth century. As originally formulated, the rule was sometimes interpreted as only holding a physician to the standards of those physicians who actually practiced in his community. Even some relatively recent decisions have apparently adhered to this strict formulation. The policy behind the rule was to prevent the small town practitioner from being held to the standards of practice of the more sophisticated urban areas. The courts generally assumed that the rural practitioner had less access to the latest medical information and facilities than urban doctors and did not have the benefit of the same breadth of experience. It was also argued that since the cities offered a more lucrative practice, they attracted the most talented doctors and any attempt to hold country doctors to urban standards would only drive rural doctors out of practice, leaving small communities without any doctors.
Early in the history of the locality rule it became obvious that strict adherence to the same locality requirement could completely immunize doctors who were the only practitioners in a small community and small groups of local physicians whose common lax practice fell below that ordinarily practiced in rural areas generally. The rule was thus broadened to "the same or similar localities" the standard applied by the district court in this case. This modification presented no conceptual problem but its practical application generated continual difficulties in deciding whether two localities were similar. Although for at least one court geographic proximity played an important role the focus of decision quickly moved away from strictly geographic factors towards general socioeconomic variables. The modern trend, and now the majority view, is to consider factors directly related to the practice of medicine. Under this majority rule, the court considers whether the medical facilities of the locality on which a proffered expert witness will base his testimony are comparable to those available in the defendant's community.
Even the most liberal application of the "similar locality" rule carries with it the unstated assumption that some characteristics of a geographically defined area justify a different and perhaps lower standard of care in the exercise of medical judgment than the standard followed in localities which do not share those characteristics. In nineteenth century America the validity of this assumption may have been obvious enough for courts to accept without empirical proof. Its continuing validity in our age of ubiquitous national communication networks both within and without the medical profession is extremely doubtful. Even as the courts applied the locality rule it did not go unrecognized that the increasing standardization of medical training significantly undermined the application of geographic limitations to the population from which a qualified expert witness could be drawn to testify as to the required standard of care. See Sinz v. Owens, 33 Cal.2d 749, 767, 205 P.2d 3, 13 (1949) (Carter, J., dissenting); Montgomery v. Stary, 84 So.2d 34, 39-40 (Fla.1955) (dicta).
Modern medical education and postgraduate training has been nationalized. Scientific information flows freely among medical institutions throughout the country. Professional journals and numerous other networks of continuing education are all national in scope. See Shilkret v. Annapolis Emergency Hosp. Ass'n, 276 Md. 187, 199, 349 A.2d 245, 252 (1975); D. Louisell & H. Williams, The Parenchyma of Law 183-84 (1960). Several courts have followed the lead of the medical profession and have established a national standard of care for all physicians, completely abandoning any locality limitation. The highest court of Maryland has just recently taken that step and now requires a physician "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." Shilkret, supra, 276 Md. at 200-01, 349 A.2d at 253. At least three other jurisdictions have also abandoned the locality rule. See Blair v. Eblen, 461 S.W.2d 370, 372-73 (Ky.1970); Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973, 978 (1967) (en banc); Shier v. Freedman, 58 Wis.2d 269, 206 N.W.2d 166, 174 (1973).
Even in jurisdictions which have not adopted a national standard for all malpractice issues, if a physician holds himself out as a specialist, as Dr. Footer has done in this case, he is held to the general standard of care required of all physicians in the same specialty. See Kronke v. Danielson, 108 Ariz. 400, 499 P.2d 156, 159 (1972) (en banc); Christy v. Saliterman, 288 Minn. 144, 179 N.W.2d 288, 302 (1970). In order to become a certified specialist in obstetrics, a physician must meet nationally uniform educational and residency requirements. See Shilkret, supra, 276 Md. at 198, 349 A.2d at 251. The textbooks used are national textbooks and the required examination is a national exam graded by a body of examiners selected so as to eliminate any regional peculiarities. See J.A. at 7. After certification, specialists keep abreast of developments in their field through medical specialty journals available throughout the nation and medical specialty societies with national memberships. It seems clear that the medical profession itself has adopted a national standard for membership in one of its certified specialties. If the law remains tied to a locality standard, it ignores the reality of modern medicine in favor of an outdated mythology. See Shilkret, supra, 276 Md. at 198, 349 A.2d at 251.
We therefore hold that at least with respect to nationally certified medical specialists like Dr. Footer the "same or similar locality" rule no longer applies. Specialists are required to exercise that degree of care and skill expected of a reasonably competent practitioner in his specialty acting in the same or similar circumstances.
Under this national standard for specialists, it is of course improper to exclude the testimony of a witness who has established his familiarity with the national standards of the specialty. Similarly, a national standard does not permit instructions to the jury to indicate that the defendant's conduct be compared only to the practice within his own geographic community or that of a similar locality. Since the district court in this case excluded the testimony of Dr. Davis and instructed the jury on the basis of the similar locality rule which we find inapplicable to specialists, the judgment for the defendant is vacated and the case is remanded for a new trial.
Vacated and remanded.