Shier v. Freedman
| Decision Date | 20 April 1973 |
| Docket Number | No. 5,5 |
| Citation | 58 Wis.2d 269,206 N.W.2d 166 |
| Parties | Vernon SHIER, Appellant, v. Albert L. FREEDMAN, M. D., Respondent. |
| Court | Wisconsin Supreme Court |
Kersten & McKinnon, Milwaukee, for appellant; George P. Kersten, Milwaukee, of counsel.
Fulton, Menn & Nehs, Appleton, for respondent; Peter S. Nelson, Appleton, of counsel.
The most important issue before us in this case is whether the 'locality rule' in medical malpractices in Wisconsin should be abrogated both as to general practitioners and specialists.
For over 80 years Wisconsin has followed the locality rule. Gates v. Fleischer (1886), 67 Wis. 504, 30 N.W. 674. On of the most accurate statements of the rule was pronounced in Burnside v. Evangelical Deaconess Hospital (1970), 46 Wis.2d 519, 175 N.W.2d 230. This court stated at pages 522, 523, 175 N.W.2d at page 232:
The rationale for the rule was first expressed in Small v. Howard (1880), 128 Mass. 131, 136. It was stated:
. . . 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 speciality of the practice of surgery."
The basis for this rule was that a physician at that time in a small town lacked the opportunity to keep abreast of the advances in the medical profession and that he did not have the most modern facilities to provide care and treatment for his patients. Under these circumstances it would be unfair to hold such a doctor to the same standards of care as doctors who have such opportunities and facilities in larger cities.
The modern trend is not to base the standard of care on geographic localities. Rather, the test is whether the doctor failed under the circumstances of each case in question to exercise that degree of skill and knowledge that is usually exercised in similar cases by other members of the medical profession generally. 37 A.L.R.3d 420, 432. The rationale for abrogating the locality rule and adopting the modern trend is well expressed in the following two cases. In Pederson v. Dumouchel (1967), 72 Wash.2d 73, 77--79, 431 P.2d 973, 977--978, the Washington Supreme Court en banc stated:
'The original reason for the 'locality rule' is apparent. When there was little intercommunity travel, courts required experts who testified to the standard of care that should have been used to have a personal knowledge of the practice of physicians in that particular community where the patient was treated. It was the accepted theory that a doctor in a small community did not have the same opportunities and resources as did a doctor practicing in a large city to keep abreast of advances in his profession; hence, he should not be held to the same standard of care and skill as that employed by doctors in other communities or in larger cities. Parenthetically, we note that the law of this jurisdiction has never recognized a difference in the professional competency of a lawyer in a small community from that of the professional competency required of a lawyer in a large city.
'The 'locality rule' had two practical difficulties: first, the scarcity of professional men in the community who were qualified or willing to testify about the local standard of care; and second, the possibility of a small group, who, by their laxness or carelessness, could establish a local standard of care that was below that which the law requires. The fact that several careless practitioners might settle in the same place cannot affect the standard of diligence and skill which local patients have a right to expect. Negligence cannot be excused on the ground that others in the same locality practice the same kind of negligence. No degree of antiquity can given sanction to usage bad in itself.
'Broadening the rule to include 'similar localities' or 'similar communities' alleviated, to a certain extent, the first practical difficulty of the 'locality rule'--additional witnesses might be available; but it did little to remove the deficiencies springing from the second.
'. . .
'Now there is no lack of opportunity for a physician or surgeon to keep abreast of the advances made in his profession and to be familiar with the latest methods and practices adopted.
'We have found no better statement of existing conditions. The 'locality rule' has no present-day vitality except that it may be considered as one of the elements to determine the degree of care and skill which is to be expected of the average practitioner of the class to which he belongs. The degree of care which must be observed is, of course, that of an average, competent practitioner acting in the same or similar circumstances. In other words, local practice within geographic proximity is one, but not the only factor to be considered. No longer is it proper to limit the definition of the standard of care which a medical doctor or dentist must meet solely to the practice or custom of a particular locality, a similar locality, or a geographic area.
'The 'locality rule' has never been suggested in any English case. (Nathan, Medical Negligence (Butterworth & Co., Ltd., 1957), p. 21.) In England, the same standard is applicable throughout the country. The extent of out country is such, however, that we hesitate to fix a definite geographic limit upon the standard of care--be it statewide or expanded to the Pacific Northwest, as suggested by plaintiff's requested instruction.
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