Shilkret is a Standards of Care Case
REQUIRED READING
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:
SHILKRET v. ANNAPOLIS
EMERGENCY HOSPITAL
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.
(1)
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
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.
(2)
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.
