Friday, January 31, 2014


A person who commences a legal action is making an allegation.

To prevail in that legal action he must prove his allegation.  We say that he has the burden of proof.

If at the conclusion of his part of the case he has failed so badly in meeting the burden of proof that he has not made a prima facie case, one that on the face of it has some legal merit, it can be dismissed without the defendant offering evidence.  

If the case is a prima facie case, at least barely legally sufficient, the defendant has the option of not opposing it and hoping the jury agrees it has not been proven to the required burden of proof, or the defendant can go forward with his evidence to further weaken the case against him.

Even if the plaintiff has made a prima facie case (maybe it happened) he still may not have met the full burden of proof for the case.  There are several standards.
1.  Beyond a Reasonable Doubt.  This is the highest standard to be met and it is used in all criminal cases.  This standard is also used for the civil (not criminal) commitment of a sexual predator because there is no recognized treatment [or illness for that matter] and the commitment is essentially indefinite.

2.  Clear and Convincing.  This standard is less exacting than the 'beyond a reasonable doubt' standard, but it is nonetheless a high standard.  It is typically used in civil commitment cases [danger to himself or others] but can be used in other cases as well.  In Cruzan the U.S. Supreme Court upheld a 'clear and convincing' standard to be met for evidence that a person in a persistent vegetative state would want to have a ventilator or artificial nutrition and hydration stopped.

3.  Preponderance of the Evidence.  This is the basic standard of proof used in most civil cases, including medical malpractice cases and most other civil suits.  A preponderance of the evidence is sometimes said to be 'more likely than not' or '51% chance' that the events complained of occurred. Even though this is a fairly low standard of proof, it is still higher than a prima facie case since 'more likely than not' is a bit more demanding than 'maybe it happened'. 


1.  Evidence 
2.  Proving Negligence
3.  Expert Witness

Res ipsa loquitur [the thing speaks for itself] is a legal doctrine that can sometimes be used to establish negligence even when direct proof of negligence isn't available if the injury is such that it could not have occurred in the absence of some negligence on the part of the person in control of the means of injury.

In some jurisdictions, res ipsa loquitur can be used in a medical malpractice case even if the usual requirement for an expert witness is not met.   Usually the injury itself is sufficient evidence of negligence in res ipsa loquitur cases.

2/18/13  The Daily Mail has reported that the NHS has paid one million pounds in damages because surgeons have removed the wrong testicle from patients.

The co-director of Patient Concern reportedly said:

'It is amazing that surgeons don't always take enough care to guarantee that they are removing the correct testicle.'

Indeed.  It does seem surprising that the surgeon would not ask himself, "Am I sure I am cutting off the correct testicle?" before reaching for the scissors.  There are only two of them; how hard can it be to sort them out?

The Daily Mail article is here 

An actual court case best illustrates the doctrine res ipsa loquitur:

"Plaintiff underwent a total right knee replacement, or arthoplasty, on May 11, 1995 at Jefferson Memorial Hospital in Festus, Missouri. The operation was performed by Dr. Koreckij while Plaintiff was under general anesthesia. Upon awaking from the anesthesia, Plaintiff immediately experienced pain in her right hand, right arm and right shoulder. Plaintiff sued Defendants for medical malpractice.  Because Plaintiff was unable to identify specific acts of negligence, she proceeded under the doctrine of res ipsa loquitur. Defendants moved for summary judgment, which the trial court granted because there was no expert testimony to show Defendants' specific injury-causing act and thus it would be impossible for laymen to determine from common knowledge and experience that Plaintiff's injury would not have occurred but for Defendants' negligence.

Plaintiff filed this timely appeal. Both of "Plaintiff's points on appeal allege that .the trial court erred in sustaining Defendants' summary judgment motions in this res ipsa medical malpractice case.  We agree.

" In order to invoke the doctrine of res ipsa loquitur, a plaintiff must demonstrate:
(1) the occurrence resulting in injury does not ordinarily happen in the absence of negligence;
(2) the instrumentalities that caused the injury are under the care and management of the defendant; and
(3) the defendant possesses either superior knowledge of or means of obtaining information about the cause of the occurrence. Bass v. Nooney Co., 646 S.W.2d 765, 768 (Mo.banc 1983)."

As a general rule res ipsa loquitur may be available to a Plaintiff if:

1.  The accident is of a type that does not occur unless there has been negligence somewhere.

2.  The Defendant has exclusive control of the agent that caused the accident.

3.  There is no evidence that the Plaintiff contributed to the accident.

4.  No other evidence of the cause of the accident is available.

Here is a comment on res ipsa loquitur:


The statute of limitations requires that a lawsuit be filed within a given period of time or it cannot be pursued, no matter how meritorious the claim. 

For example, if you surgically remove a patient’s right leg when you were supposed to remove his left leg it would seem to be a fairly clear case of negligence on your part.  However, if the statute of limitations is one year and the patient does not file suit against you until one year and one day after the removal of the leg, then he has lost his right to sue and cannot proceed against you.  

However, the term of the statute of limitations might be extended beyond the actual term set by the statute under certain circumstances. If the patient is receiving ongoing treatment for the same condition for which the malpractice occurred, the statutory time may not begin to run until the last day for which treatment was given.  If a foreign object is left in the patient’s body, the clock may not begin to run until it is discovered.  If the patient is a minor, the clock on the statute of limitations may not begin to run until the patient becomes an adult—at the age of 18 in most jurisdictions.

In general, a statute of limitations will place a limit on the length of time that may pass before someone can sue for a particular wrong.  

Bear in mind that the statute of limitations may differ from one cause of action to another.  That issue was confronted in the Canterbury case [required reading].  Canterbury's cause of action against his surgeon was factually based on a failure of the surgeon to fully inform his patient of the risks of the proposed back surgery.  In other words, the surgeon failed to get informed consent for the procedure.

However, the Canterbury court noted that if doing the surgery without proper informed consent was a battery which had a one year statute of limitations Mr. Canterbury was too late to maintain his lawsuit because the year had already passed.  Many previous informed consent cases had been legally identified as battery cases.  On the other hand, if the court identified the cause of action as negligence then a 3 year statute of limitations would apply and Mr. Canterbury had commenced his suit in time.  The court settled on 'negligence' and the case was allowed to continue.  

The statute of limitations for a cause of action may also depend on the relationship of the parties.  

Assume you are a cardiologist who put his patient on a treadmill as part of an effort to diagnose a problem.  You negligently run the treadmill too fast and the patient dies.  That incident occurred in the physician/patient relationship and would be malpractice and the cause of action would be that for medical malpractice cases in that state and the statute of limitations would be that normally required for medical malpractice cases.

Now assume exactly the same physical environment but with the doctor conducting a physical examination as part of an employment exam rather than for treatment.  In this case the person killed is not a patient;  he is more of a specimen under examination, and no physician/patient relationship exists.  This likely would not be an instance of malpractice because it is not a treating relationship.  The tort in this instance would likely be ordinary negligence rather than medical malpractice and the statute of limitations could be different.


 A declaratory judgment is usually sought to have the court declare the law on a specific issue rather than to seek monetary damages.  For example, if your insurer states prior to trial that they are going to deny any claim because of a policy defense, you may sue for a declaratory judgment to get the court to declare as a matter of law that the insurer’s policy defense is not valid.

In this situation there really is no need to call witnesses to testify to differing factual issues.  The facts are not in issue.  The only question is the purely legal issue as to whether the known legal provisions of the insurance policy insure someone for a known claim.   It is purely a question of law and that can be decided (declared if you like) by a judge without a jury.

The Hicks case [required reading] provides an example a suit for declaratory judgment.  The medical board adopted regulations allowing it to regulate ear piercing.  Beautician, Edna Hicks, filed suit for a declaratory judgment for a court decision as to whether or not the board's regulation was lawful. No facts were in dispute.  The only question before the court was whether the board's regulation conflicted with statutory law. The state supreme court sided with Hicks and declared the medical board's regulation invalid.

TRO and Injunction

A Temporary Restraining Order (TRO) is an emergency, short-lived injunction that orders a party to stop a particular action until the issue can be heard more fully and the court can decide whether or not to issue an injunction, barring action indefinitely.  If, for example, your mother’s physician is going to order your mother’s ventilator turned off because it is “futile care,” you may ask for an emergency TRO to stop him until the court can hear the matter in full and issue a permanent injunction preventing him from turning it off.  Ignoring a TRO or Injunction can be perilous.  It amounts to ignoring a court order and the violator can be punished for contempt of court.  If a subsequent hearing supports the petitioner's argument the TRO can be converted to a permanent injunction.

A federal court entered a TRO in the case of Jahi McMath to prevent medical staff from ending life preserving treatment after deciding she was brain dead.  The TRO gave the family time to assess their options before the child was dead dead instead of just brain dead.

Habeas Corpus

Habeas Corpus is an ancient remedy that is mention in the Magna Carta (1215) and is still a robust method of challenging the legality of the involuntary confinement of an individual.  If you think you are being wrongly held in a mental institution, your means of challenging your detention is to bring a Habeas Corpus action.


Guardianship proceedings are for the purpose of appointing a competent guardian to look after the affairs of one who is deemed legally incompetent, such as an infant without parents or an elderly person whose senility has rendered him incapable of looking after his own affairs.  Actress Amanda Bynes is a public figure who recently had her mother appointed as conservators (guardians) because of her erratic behavior.

Civil Commitment

Civil Commitment proceedings usually are for the purpose of legally detaining someone against his will in a non-criminal action.  For example, a person who has become a danger to himself or others may be committed to a mental institution against his will.


A person with a dangerous and communicable disease may be quarantined from contact with the general public against her will. 

Thursday, January 30, 2014


To comply with the applicable standard of care, a physician must exercise that degree of care, skill and learning that would be expected under similar circumstances of a reasonably prudent physician. 

In a medical malpractice case the court and jury learn what a reasonably prudent physician would do--that is what the standard of care is--by hearing testimony from expert witnesses--physicians.


Under normal circumstances, a medical malpractice case cannot be proven without the testimony of an expert witness.

One can wonder if a physician practicing in a small, remote community will find his care measured by expert witnesses from institutions like Mayo Clinic.  The answer is 'no'.  Roughly speaking, the physician is likely to be compared to other reasonably prudent physicians who are similar placed.

The important Shilkret case provides a thorough analysis of this issue and it can be found in an earlier post in this blog which is linked at Shilkret v. Annapolis.



In some cases expert testimony may not be required if the malpractice is so obvious that any reasonable lay person can recognize it without the aid of an expert.  The doctrine invoked in such cases is res ipsa loquitur or 'the thing speaks for itself;.

Here is a Washington State medical malpractice case that addresses res ipsa loquitur

Another post on this site goes into res ipsa loquitur in more detail.


Although the recent Zimmerman case in Florida was a criminal case the testimony of the medical experts was memorable.  

The State's (Prosecution) witness, Dr. Bao, gave a miserable performance on the stand.  His testimony in the first of three parts on You Tube can be seen here:  Testimony of Dr. Shiping Bao

The Defense witness, Dr. Di Maio, was superb:  Testimony of Dr. Vincent Di Maio  Dr. Di Maio was authoritative, communicated well to the jury, was not combative on cross examination, and could not be drawn into opinions on matters outside of his field.  He was interesting, convincing, and one wanted to listen to him.




Shilkret is a Standards of Care Case


Shilkret is a landmark case that presents a good analysis of the standard of care to be followed by physicians.

Some sections of the case below are in bold for easy student access. 

Remember that other states may use one of the locality rules rather than the national standard.

Ultimately, the Shilkret court holds:
"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."

It is important to note that the court does not put the standard of care at the level of an average physician.  Adopting a standard drawn from the Restatement (Second) of Torts this court states:

"(The standard) is not that of the most highly skilled, nor is it that of the average member of the profession . . ., since those who have less than median or average skill may still be competent and qualified. Half of the physicians of America do not automatically become negligent in practicing medicine at all, merely because their skill is less than the professional average."

       Case Law: 

It is worth noting that this court's opinion draws heavily on decisions reached by previous courts.  This is how law--including much of medical law--evolves in courts by court decisions rather than by legislatures passing acts.  

Often in the process of analysis a court will examine earlier court decisions reaching different conclusions and then try to determine which line of cases represents the better legal approach.  Sometimes the line of cases will largely converge on a single conclusion and one can expect essentially all later courts to decide the same issue the same way.  When the great weight of legal authority as reflected in many, many court decisions has become clear, then it is sometimes said to be black letter law, generally meaning that the hundreds of earlier decisions can be distilled into a clear, generally accepted statement of the law.  The Restatement (Second) of Torts (cited above) is a publication of black letter tort law that will normally be accepted by courts when addressing similar issues.  Another example of black letter law we have seen earlier relates to the tort of battery.  'Battery is any unauthorized touching".   

The court's opinion and decision follow:


Court of Appeals of Maryland.
       276 Md. 187, 349 A.2d 245 (Md. 1975)

       LEVINE, Judge.

       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.

       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. 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 to 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, 384 (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, 1096 (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 Riatt, 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, 905 (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, 5
[349 A.2d 248] 276 A.2d 36, 46 (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, 598 (1969) ('the standardof 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 plaintiff's 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.


The Standard of Care Applicable to Physicians

       The earliest traces of the strict locality rule appeared acentury 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'. . . In the smaller towns and country, those who practice medicine and surgery, though often possessing a thorough theoretical knowledge of the highest elements of the profession do not enjoy so great opportunities of daily observation and practical operations, where the elementary studies are brought into every day use, as those have who reside in the metropolitan towns, and though just as well informed in the elements and literature of their profession, they should not be expected to exercise that high degree of skill and practical knowledge possessed by those having greater facilities for performing and witnessing operations, and who are, or may be constantly observing the various accidents and forms of disease. . . .' 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 practitionerin 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 plaintiff's locality could effectively preclude any possibility of obtaining expert medical testimony. Note, 40 Fordham L.Rev. 435, 438 (1971).

       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. '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.

       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 [the strict locality rule] 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 (Okl.1973) ('by similar specialist . . . in the same or similar communities'); Incollingo v. Ewing, 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.   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.  Even within the framework of [349 A.2d 251] 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');  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. 

       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'), accord, Douglas v. Bussabarger,
73 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 standarization 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 interms 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:

'. . . (The standard) is not that of the most highly skilled, nor is it that of the average member of the profession . . ., since those who have less than median or average skill may still be competent and qualified. Half of the physicians of America do not automatically become negligent in practicing medicine at all, merely because their skill is less than the professional average. On the other hand, the standard is not that of the charlatan, the quack, the unqualified or imcompetent individual who has succeeded in entering the profession . . ..'

       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, [349 A.2d 253] 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. 1. 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.


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, 383 U.S. 946, 86 S.Ct. 1204, 16 L.Ed.2d 209 (1966); see generally Note, Non-Resident Expert Testimony On Local Hospitals 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:

'. . . It is doubtful today if there is any substantial difference from one locality to another in the type of hospital services rendered. Hospitals must now be licensed and accredited. They are subject to statutory regulation. In order to obtain approval they must meet certain standard requirements. . . . It is no longer justifiable, if indeed it ever was, to limit a hospital's liability to that degree of care which is customarily practiced in its own community. . . . (M)any communities have only one hospital. Adherence to such a rule, then, means the hospital whose conduct is assailed is to be measured only by standards which it has set for itself. There is no other hospital to which it may be compared.'   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 standardof 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, the 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.

       Judgment of the Court of Special Appeals reversed; remanded to that court with instructions to remand the case as against all appellees to the Circuit Court for Anne Arundel County for a new trial; appellees to pay costs.