Brune v. Belinkoff

• Decision Date: 03 April 1968
• Citation: 354 Mass. 102,235 N.E.2d 793
• Parties: Theresa BRUNE et al. v. Stanton BELINKOFF.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 793

235 N.E.2d 793

354 Mass. 102

Theresa BRUNE et al. v. Stanton BELINKOFF.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Jan. 4, 1968.

Decided April 3, 1968.

Meyer H. Goldman, Boston, (Solomon Rosenberg and George H. Young, New Bedford, with him) for plaintiffs.

William J. Fenton, Taunton, for defendant.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK and REARDON, JJ.

SPALDING, Justice.

In this action of tort for malpractice Theresa Brune (plaintiff) seeks to recover from the defendant because of alleged negligence in administering a spinal anesthetic. There is a count by the plaintiff's husband for consequential damages. The jury returned verdicts for the defendant on each count. The case comes here on the plaintiffs' exceptions to the judge's refusal to grant certain requests for instructions, to portions of the charge, and to the denial of the plaintiffs' motion for a new trial.

The plaintiff was delivered of a baby on October 4, 1958, at St. Luke's Hospital in New Bedford. During the delivery, the defendant, a specialist in anesthesiology practising in New Bedford, administered a spinal anesthetic to the plaintiff containing eight milligrams of pontocaine in one cubic centimeter of ten per cent solution of glucose. When the plaintiff attempted to get out of bed eleven hours later, she slipped and fell on the floor. The plaintiff subsequently complained of numbness and weakness in her left leg, an affliction which appears to have persisted to the time of trial.

Testimony was given by eight physicians. Much of it related to the plaintiff's condition. There was ample evidence that her condition resulted from an excessive dosage of pontocaine.

There was medical evidence that the dosage of eight milligrams of pontocaine was excessive and that good medical practice required a dosage of five milligrams or less. There was also medical evidence, including testimony of the defendant, to the effect that a dosage of eight milligrams in one cubic centimeter of ten per cent dextrose was proper. There was evidence that this dosage was customary in New Bedford in a case, as here, of a vaginal delivery. ¹

1. The plaintiffs' exception to the refusal to give their first request for instruction and their exception to a portion of the charge present substantially the same question and will be considered together. The request reads: 'As a specialist, the defendant owed the plaintiff the duty to have and use the care and skill commonly possessed and used by similar specialist(s) in like circumstances.' The relevant portion of the charge excepted to was as follows: '(The defendant) must measure up to the standard of professional care and skill ordinarily possessed by others in his profession in the community, which is New Bedford, and its environs, of course, where he practices, having regard to the current state of advance of the profession. If, in a given case, it were determined by a jury that the ability and skill of the physician in New Bedford were fifty percent inferior to that which existed in Boston, a defendant in New Bedford would be required to measure up to the standard of skill and competence and ability that is ordinarily found by physicians in New Bedford.'

The basic issue raised by the exceptions to the charge and to the refused request is whether the defendant was to be judged by the standard of doctors practising in New Bedford.

The instruction given to the jury was based on the rule, often called the 'community' or 'locality' rule first enunciated in Small v. Howard, 128 Mass. 131, a case decided in 1880. There the defendant, a general practitioner in a country town with a population of 2,500, was consulted by the plaintiff to treat a severe wound which required a considerable degree of surgical skill. In an action against the defendant for malpractice this court defined his duty as follows: 'It is a matter of common knowledge that a physician in a small country village does not usually make a specialty of surgery, and, however well informed he may be in the theory of all parts of his profession, he would, generally speaking, be but seldom called upon as a surgeon to perform difficult operations. He would have but few opportunities of observation and practice in that line such as public hospitals or large cities would afford. The defendant was applied to, being the practitioner in a small village, and we think it was correct to rule that 'he was bound to possess that skill only which physicians and surgeons of ordinary ability and skill, practising in similar localities, with opportunities for no larger experience, ordinarily possess; and he 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. '' The rule in Small v. Howard has been followed and applied in a long line of cases, some of which are quite recent. Ernen v. Crofwell, 272 Mass. 172, 175, 172 N.E. 73, 69 A.L.R. 1140; Bouffard v. Canby, 292 Mass. 305, 309, 198 N.E. 253; Vigneault v. Dr. Hewson Dental Co., 300 Mass. 223, 225, 15 N.E.2d 185, 129 A.L.R. 95; Berardi v. Menicks, 340 Mass. 396, 400, 164 N.E.2d 544, 83 A.L.R.2d 1; Ramsland v. Shaw, 341 Mass. 56, 61, 166 N.E.2d 894; Riggs v. Christie, 342 Mass. 402, 405--406, 173 N.E.2d 610; Delaney v. Rosenthall, 347 Mass. 143, 146, 196 N.E.2d 878. Although in some of the later decisions the court has said that the doctor must exercise the care prevailing in 'the locality where he practiced' it is doubtful if the court intended to narrow the rule in Small v. Howard where the expression 'similar localities' was used. ²

The rationale of the rule of Small v. Howard is that a physician in a small or rural community will lack opportunities to keep abreast with the advances in the profession and that he will not have the most modern facilities for treating his patients. Thus, it is unfair to hold the country doctor to the standard of doctors practising in large cities. The plaintiffs earnestly contend that distinctions based on geography are no longer valid in view of modern developments in transportation, communication and medical education, all of which tend to promote a certain degree of standardization within the profession. Hence, the plaintiffs urge that the rule laid down in Small v. Howard almost ninety years ago now be ree xamined in the light of contemporary conditions.

The 'community' or 'locality' rule has been modified in several jurisdictions and has been subject to critical comment in legal periodicals. ³

One approach, in jurisdictions where the 'same community rule' obtains, has been to extend the geographical area which constitutes the community. The question arises not only in situations involving the standard of care and skill to be exercised by the doctor who is being sued for malpractice, but also in the somewhat analogous situations concerning the qualifications of a medical expert to testify. See Sampson v. Veenboer, 252 Mich. 660, 666--667, 234 N.W. 170 (expert from another State permitted to testify as to standards in Grand Rapids, in view of evidence that he was familiar with standards in similar localities). In Connecticut which has the 'same locality rule,' it was said by the Supreme Court of Errors, 'Our rule does not restrict the territorial limitation to the confines of the town or city in which the treatment was rendered, and under modern conditions there is perhaps less reason than formerly for such restriction. There is now no lack of opportunity for the physician or surgeon in smaller communities to keep abreast of the advances made in his profession, and to be familiar with the latest methods and practices adopted. It is not unreasonable to require that he have and exercise the skill of physicians and surgeons in similar localities in the same general neighborhood. It may not be sufficient if he exercise only that degree of skill possessed by other practitioners in the community in which he lives.' Geraty v. Kaufman, 115 Conn. 563, 573--574, 162 A. 33, 36.

Other courts have emphasized such factors as accessibility to medical facilities and experience. See Tvedt v. Haugen, 70 N.D. 338, 297 N.W. 183, 132 A.L.R. 379, where the defendant doctor recognized that the plaintiff's injury required the care of a specialist but failed to call this to the attention of the plaintiff. The court said at p. 349, 294 N.W. at p. 188: 'The duty of a doctor to his patient is measured by conditions as they exist, and not by what they have been in the past or may be in the future. Today, with the rapid methods of transportation and easy means of communication, the horizons have been widened, and the duty of a doctor is not fulfilled merely by utilizing the means at hand in the particular village where he is practicing. So far as medical treatment is concerned, the borders of the locality and community have, in effect, been extended so as to include those centers readily accessible where appropriate treatment may be had which the local physician, because of limited facilities or training, is unable to give.' And in Cavallaro v. Sharp, 84 R.I. 67, 121 A.2d 669, a medical expert formerly of Philadelphia was allowed to testify as to required degree of care in Providence, the court saying at page 72, 121 A.2d at page 672, 'The two localities cannot be deemed so dissimilar as to preclude an assumption that mastoidectomies are...