Gambill v. Stroud

• Decision Date: 26 January 1976
• Docket Number: No. 75--80,75--80
• Citation: 258 Ark. 766,531 S.W.2d 945
• Parties: , 91 A.L.R.3d 325 Richard GAMBILL et al., Appellants, v. Dr. Paul T. STROUD, Appellee.
• Court: Arkansas Supreme Court

Page 945

531 S.W.2d 945

258 Ark. 766, 91 A.L.R.3d 325

Richard GAMBILL et al., Appellants, v. Dr. Paul T. STROUD, Appellee.

No. 75--80.

Supreme Court of Arkansas.

Jan. 26, 1976.

McMath, Leatherman & Woods, Little Rock, for appellants.

Barrett, Wheatley, Smith & Deacon, Jonesboro, for appellee.

FOGLEMAN, Justice.

The appellants, the husband and the guardian of Yvonne Gambill, brought this action for damages assertedly resulting from medical malpractice. After an extended trial there was a verdict for the defendant, Dr. Stroud. The principal question on appeal is whether we should modify our prevailing 'same or similar locality' rule in malpractice cases, by which a physician, surgeon, or dentist is held only to the standard of competence that obtains in his own locality or in a similar locality. The rule is fully stated in AMI 1501, which the trial judge gave over the plaintiffs' objections. AMI Civil 2d, 1501 (1974).

In discussing the issues of law that are presented we need not describe in detail the serious injuries suffered by Mrs. Gambill. The appellee and another surgeon were prepared to operate upon the patient in a Jonesboro hospital, for the removal of a thyroid cyst. The operation was not performed because, after the patient had been put under anesthesia, she suffered a cardiac arrest (and later respiratory arrest) that resulted in serious and irreversible brain damage. The plaintiffs' claim against the anesthesiologist was settled before trial. It is not argued that there was no substantial evidence to support the verdict.

The evidence disclosed that Dr. E. B. Sparks, the anesthesiologist who participated, told Dr. Stroud that the patient was ready for surgery, but the procedure was stopped immediately after Dr. Stroud made an incision and found that Mrs. Gambill's blood was 'very dark.' This blood coloration is indicative of an inadequate oxygen supply in the blood. On the evidence admitted, there was a jury question as to Dr. Stroud's negligence.

Appellants offered the testimony of Dr. James Mayfield and Dr. George Mitchell, Jonesboro anesthesiologists, Dr. Sparks, also of Jonesboro, Dr. Charles W. Quimby, an anesthesiologist who practices and teaches at Vanderbilt University Hospital and Dr. Davis A. Miles, a Little Rock neurologist, who testified that he was familiar with the standards of practice in Jonesboro or similar communities. Dr. Quimby had taught and practiced anesthesiology for five years at the Medical Center in Little Rock, during which time he conducted statewide seminars relating to types and techniques of anesthesia for general practitioners, surgeons, obstetricians and anesthesiologists. He had obtained a law degree from the University of Pennsylvania in 1959. There is no indication that any witness offered by plaintiffs was not permitted to testify, or that any pertinent testimony of any medical witness for plaintiffs was excluded. Appellants state in their brief that it was uncontroverted that the standards of medical practice in Jonesboro, Little Rock and Memphis were comparable. Appellants did not offer any instruction in lieu of AMI 1501. All of the parties tried this case under the same or similar locality rule.

In spite of the failure of appellants to show how they were prejudiced in the introduction of evidence or to offer an instruction expressing their theory of the proper test of negligence in a medical malpractice case, they did make a specific objection to reference to locality. We might well conclude our discussion on the instruction on the failure to offer a modified or substitute instruction. See Wharton v. Bray, 250 Ark. 127, 464 S.W.2d 554. We consider the objection to support the contention that the locality rule is obsolete. We think, however, that the same or similar locality rule articulately expressed in AMI 1501 is proper, adequate, viable and not unduly restrictive on the evidence a plaintiff may introduce. In spite of its abandonment in some jurisdictions and limitations in others, it may well be the majority rule. See 61 Am.Jur.2d 239, Physicians & Surgeons, § 116; 70 C.J.S. Physicians and Surgeons § 43, p. 950; Restatement of the Law, Torts 2d (1965) 73, § 299A. It has been recently applied in many jurisdictions. See e.g., Goedecke v. Price, 19 Ariz.App. 320, 506 P.2d 1105 (1973); Peters v. Gelb, 303 A.2d 685 (Del.Super.1973); Bailey v. Williams, 189 Neb. 484, 203 N.W.2d 454 (1973); Karrigan v. Nazareth Convent & Academy Inc., 212 Kan. 44, 510 P.2d 190 (1973); Burton v. Smith, 34 Mich.App. 270, 191 N.W.2d 77 (1971); McBride v. U.S., 462 F.2d 72 (9 Cir., 1972).

The thrust of appellants' argument is that the rule set out in AMI 1501 is no longer applicable to modern medicine, because doctors practicing in small communities now have the same opportunities and resources as physicians in large cities to keep abreast of advances in the medical profession, due to availability of the Journal of the American Medical Association and other journals, drug company representatives and literature, closed circuit television, special radio networks, tape recorded digests of medical literature, medical seminars and opportunities for exchange of views between doctors from small towns and those from large cities where there are complexes of medical centers and modern facilities.

However desirable the attainment of this ideal may be, it remains an ideal. It was not shown in this case, and we are not convinced, that we have reached the time when the same postgraduate medical education, research and experience is equally available to all physicians, regardless of the community in which they practice. The opportunities for doctors in small towns, of which we have many, to leave a demanding practice to attend seminars and regional medical meetings cannot be the same as those for doctors practicing in clinics in larger centers. It goes without saying that the physicians in these small towns do not and cannot have the clinical and hospital facilities available in the larger cities where there are large, modern hospitals, and medical centers or the same advantage of observing others who have been trained, or have developed expertise, in the use of new skills, ficilities and procedures, or consulting and exchanging views with specialists, other practitioners and drug experts, of utilizing closed circuit television, special radio networks or of studying in extensive medical libraries found in larger centers.

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, § 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). For example, appellants state in their brief that it was uncontroverted that the medical standards of practice in Jonesboro, Little Rock, and Memphis are comparable. Thus, they could be considered similar localities. 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, § 299A, viz:

Unless he represents that he has greater or less skill or [258 Ark. 770-A] 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, § 299A. See also 3 Sherman & Redfield on Negligence 1532, § 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. ¹ See Annot, 37 A.L.R.3d 420, 425; Peters v. Gelb, 303 A.2d 685 (Del.Super.1973); Rucker v. High Point Memorial Hospital, Inc., 285 N.C. 519, 206 S.E.2d 196 (1974); Hundley v. Martinez, 151 W.Va. 977, 158 S.E.2d 159 (1967). 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...