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McMullin v. United States

September 14, 2007

BRIAN MCMULLIN AND DAWN MCMULLIN, INDIVIDUALLY; AND DAWN MCMULLIN, AS SPECIAL PERSONAL REPRESENTATIVE OF THE ESTATE OF GARRETT LEE MCMULLIN, DECEASED PLAINTIFFS
v.
UNITED STATES DEFENDANT



The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge

ORDER ON MOTION IN LIMINE

Presently before the Court is Defendant's Motion in Limine, which seeks to exclude the testimony of Dr. Steven L. Shore regarding the standard of care. Specifically, Defendant argues that Dr. Shore, a board certified pediatrician practicing in Atlanta, Georgia, is not familiar with the standard of care in rural Arkansas.

In Arkansas, the standard of care incorporates the locality rule. At the time of the accural of this cause of action, the burden of proof on the locality rule was as follows:

(a) In any action for medical injury, the plaintiff shall have the burden of proving:

(1) The degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality . . .

Ark. Code Ann. § 16-114-206.*fn1 The leading case on the locality rule is Gambill v. Stroud, 258 Ark. 766, 531 S.W.2d 945 (1975).

In Gambill, the Arkansas Supreme Court was called upon to decide whether it should modify the prevailing "same or similar locality" rule in malpractice cases, by which a physician is held only to the standard of competence that obtains in his own locality or in a similar locality.

Id. at 767, 531 S.W.2d at 947. The Court stated:

The rule we have established is not a strict locality rule. It incorporates the similar community into the picture. The standard is not limited to that of a particular locality. Rather, it is that of persons engaged in a similar practice in similar localities, giving consideration to geographical location, size and character of the community. Restatement of the Law, Torts, 2d, 75 Comment g, s 299A. The similarity of communities should depend not on population or area in a medical malpractice case, but rather upon their similarity from the standpoint of medical facilities, practices and advantages. See Sinz v. Owens, 33 Cal.2d 749, 205 P.2d 3, 8 A.L.R.2d 757 (1949). . . . The extent of the locality and the similarity of localities are certainly matters subject to proof. Modern means of transportation and communication have extended boundaries but they have not eliminated them. See Sinz v. Owens, supra; Tvedt v. Haugen, 70 N.D. 338, 294 N.W. 183, 132 A.L.R. 379 (1940). The opportunities available to practitioners in a community are certainly matters of fact and not law and may be shown by evidence under our own locality rule.

Our locality rule is well expressed in Restatement of the Law, Torts 2d (1965) 73, s 299A, viz:

Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.

It is fallacious to say that our locality rule permits a doctor in one place to be more negligent than one in another place. It is a matter of skill that he is expected to possess, i.e., the skill possessed and used by the members of his profession in good standing, engaged in the same type of practice in the locality in which he practices, or a similar locality. The similar locality rule prevents highly incompetent physicians in a particular town from setting a standard of utter inferiority for the practice of medicine there. Restatement of the Law, Torts 2d, 75, Comment e, s 299A. See also 3 Sherman & Redfield on Negligence 1532, s 617 (1941).

One of the ideas suggested in appellants' argument is that a national standard of care should be observed. This is also unrealistic. We cannot accept that premise as a matter of law and we certainly do not take the theory that such a standard exists to be so well established that it can be judicially noticed. If it does factually exist to any extent, or in any case, then certainly it can be shown by evidence. If the medical profession recognizes that there are standard treatments, which should be utilized nation-wide this fact should be readily susceptible of proof under the similar locality rule, because the skill and learning should be the same and all localities would be similar. [Citations omitted] The same may be said for any region exceeding the boundaries of a particular city or town. This is much more likely to be true in cases where a specialist, and not a general practitioner like Dr. Stroud, is involved. [Citations omitted]

One of the difficulties with the strict locality rule was the tendency to apply it as a rigid, exclusionary rule of evidence, rather than a definition of a standard of care required of a physician. Of course the standard does necessarily have a relationship to the admissibility of evidence. See Couch v. Hutchison, 135 So.2d 18 (Fla. App., 1961). But the similar locality rule is not necessarily so restrictive, and an expert witness need not be one who has practiced in the particular locality or who is intimately familiar with the practice in it in order to be competent to testify if the appropriate foundation has been laid to ...


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