Doctor and Employer “Bit By Their Own Dog”

The locality rule in medical malpractice cases is absolutely ridiculous. It is designed to create an artifical barrier to recovery, to protect doctors and hospitals, particularly those in rural areas, from malpractice suits. It pretends that there is a difference in the standard of care given the size of the community, as if people from smaller towns are entitled to less quality of care than those of bigger towns.

(Don’t get me wrong – there are some services that hospitals in rural towns that are not and should not be provided and there are some doctors in rural areas who lack the practical experience of taking care of some types of patients. The patients who need this help need to referred to a place where such help is routinely given.)

Well, a doctor and his group in Clarksville just got bit by their own dog. A medical malpractice verdict for the plaintiff was reversed because the Court of Appeals found that the defendents’ experts did not meet the qualifications of the locality rule.

More importantly, read this written by Judge Cain:

“The legislatively mandated ‘similar locality rule’ has long since outlived its usefulness. It developed as an improvement over the “strict locality rule” which was grounded in the manifest inequality existing in remote history between physicians practicing in large urban centers and those practicing in remote rural areas. Rapid advances in medical education, means of communication, and both invasive and diagnostic technology have rendered the ‘similar locality rule’ of today as obsolete as the ‘strict locality rule,’ which it legislatively supplanted in 1975. Totty, 121 S.W.3d 676.

There is no basis in logic or reason why the testimony of both Dr. Aaron and Dr. DeMaria is not admissible into evidence in this case. We are, however, powerless to do anything other than to engage in the tedious exercise of hair-splitting manifested both in this case and in the recent case of Travis v. Ferraraccio et al., 2005 WL 2277589, No. M2003-00916-COA-R3-CV (Tenn.Ct.App. Sept. 19, 2005). We can only once again follow the lead of the Supreme Court of Tennessee in Robinson, 83 S.W.3d at 723-24, and implore the Legislature to relegate the ‘similar locality rule’ to the ‘ash heap’ of history. Street v. Calvert, 541 S.W.2d 576, 583 (Tenn. 1976).”

(By the way, the reference to the “ash heap of history” by Judge Cain is a reference to language written by his former law partner, the late Chief Justice Joe Henry.)

Judge Cottrell and Judge Clement joined in this opinion.

I confess I hate to see a trial judge reversed and defendants lose a case because of the strict application of this assine rule. The system will now have to bear the expense of another trial. The doctor and his family will go through the trauma of another trial – always a difficult experience. The plaintiff will also have to through the trauma of another trial. Each side will go to tremendous expense in the process. And for what reason? To jump over an artifical hurdle.

Will the Legislature change the law? It will be a difficult task to convince them to do so. Doctors are fighting for more protection from responsibility from their negligence, not less. Perhaps the only way to get them to urge abandonment of this ridiculous rule is to have the courts equally apply the rule to both sides.

And perhaps that is exactly what the Court of Appeals was thinking.

Read the entire opinion in Carpenter v. Klepper here.