Shilkret v. Annapolis Emergency Hospital Ass'n

Decision Date08 October 1975
Docket NumberNo. 7,7
Parties, 99 A.L.R.3d 1119 Mark Alan SHILKRET, infant, etc., et al. v. The ANNAPOLIS EMERGENCY HOSPITAL ASSOCIATION, etc., et al.
CourtMaryland Court of Appeals

John Wheeler Glenn, Baltimore (O'Connor, Preston & Glenn, P. A., Baltimore, on the brief), for appellants.

John F. King, Baltimore (Frederick G. Savage, Baltimore, on the brief) for appellees.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

LEVINE, Judge.

In this appeal, which stems from a negligence action brought against several physicians and a hospital, we are asked to decide upon the proper standard of care to be applied in medical malpractice cases.

At the trial of the case in the Circuit Court for Anne Arundel County, the court (Wray, J.) ruled that the standard to be applied was the 'strict locality' rule (the standard of care exercised by physicians in the defendant's own community or locality), and since appellants, who were plaintiffs below, had failed to meet the requirements of that rule, directed a verdict for appellees. The Court of Special Appeals affirmed that decision in an unreported per curiam opinion. Shilkret v. Annapolis Emergency Hospital Association T/A The Anne Arundel General Hospital, et al., (No. 83, September Term, 1974, filed November 12, 1974). We granted certiorari for the limited purpose of deciding whether the Court of Special Appeals was correct in holding 'that (in Maryland) the 'Strict Locality Rule' must be applied' in medical malpractice cases.

According to the agreed statement of facts filed in lieu of a record extract, the infant plaintiff, Mark Alan Shilkret, was born at the Anne Arundel General Hospital (Anne Arundel) on December 22, 1968, and has been continuously institutionalized since that date because of brain damage that appellants allege resulted from intracranial bleeding caused by negligence at delivery. This was allegedly complicated by subsequent treatment rendered by appellees, the various attending physicians and the hospital. The several physicians who are appellees here include two obstetricians who treated the mother throughout the prenatal stage and then delivered the infant, an anesthesiologist in attendance at birth, and a pediatrician at the hospital who allegedly examined the infant the day after his birth. 1

At the trial, after excerpts from the depositions of the four defendant-physicians had been admitted in evidence, argument ensued over the applicable standard of care. When the court indicated that it would apply 'the strict locality rule,' appellants conceded that they could not prove their case against appellees under that standard and requested leave to make a proffer of expert medical testimony which 'could meet any other rule in medical negligence cases.' They were afforded this opportunity and proceeded with extensive statements of what their two experts, an obstetrician-gynecologist and a neurosurgeon, would say if called as witnesses. Each expert had an impressive curriculum vitae.

The proffered testimony of the obstetrician-gynecologist established that Anne Arundel belongs to the American Hospital Association, one of several members of the accrediting body known as the Joint Commission on Accreditation of Hospitals. 2 It was his opinion that all hospitals belonging to this group meet a national standard in caring for obstetrical patients. At the time of the infant's birth, the witness had been chief of the obstetrical-gynecological services at the U. S. Army Hospital at Aberdeen Proving Ground. He believed that in this branch of medicine, the standards at Anne Arundel were the same as those observed at Aberdeen and at all other accredited hospitals in the United States. Similarly, as a member of the American College of Gynecologists and Obstetricians, and being board certified, he believed that a national standard of care applied to those with the same qualifications. He then detailed how the failure of the four physicians and the hospital to meet the national standards of care applicable to them resulted in the injury to the plaintiff.

The other expert witness whose testimony was proffered would have stated in some detail that he was employed as a neurosurgeon at the National Institutes of Health at Bethesda, Maryland, that a national standard of care is observed in the diagnosis and treatment of neurological diseases, the knowledge of which is also possessed by general practitioners, and that each of the defendants had violated what he believed to be a national standard regarding the care of newborn infants.

Following these proffers, the trial judge granted each appellee's motion for a directed verdict. He adhered to his previously pronounced belief that the 'strict locality' standard applies in Maryland, rather than the 'national' (in which the standard of care is not tied to a particular geographic locality) or 'similar locality' (the standard of care observed by physicians of ordinary skill and care in either the defendant-physician's locality or in a similar community) tests urged by appellants, and therefore ruled that the latter had failed to present a sufficient case for the jury. The Court of Special Appeals affirmed, holding that its own prior cases-and the decisions of this Court-compelled this result. For reasons that follow, we reverse.

The general principles which ordinarily govern in negligence cases also apply in medical malpractice claims. Benson v. Mays, 245 Md. 632, 636, 227 A.2d 220 (1967); Sub. Hospital Ass'n v. Mewhinney, 230 Md. 480, 484, 187 A.2d 671 (1963). Therefore, as in any other case founded upon negligent conduct, the burden of proof rests upon the plaintiff in a medical malpractice case to show a lack of the requisite skill or care on the part of the defendant. Id. But, whereas the conduct of the average layman charged with negligence is evaluated in terms of the hypothetical conduct of a reasonably prudent person acting under the same or similar circumstances, the standard applied in medical malpractice cases must also take into account the specialized knowledge or skill of the defendant. W. Prosser, Torts § 32 (4th ed. 1971); McCoid, The Care Required Of Medical Practitioners, 12 Vand.L.Rev. 549, 558 (1959). The formulation of a standard of care that is consistent with these well established tort principles, but which is fair to both the patient and his physician, has troubled the courts for the past century.

Recently, in Raitt v. Johns Hopkins Hospital, 274 Md. 489, 499-500, 336 A.2d 90 (1975), where we held that an expert medical witness need not necessarily reside or practice in the defendant's community to testify as to the applicable standard of care in a medical malpractice case, we intimated that despite the plethora of reported medical malpractice decisions in Maryland, this Court actually had never been confronted with the need to adopt a standard of care from among the three we have mentioned.

In State, use of Janney v. Housekeeper, 70 Md. 162, 172, 16 A. 382, 384 (1889), the standard of care which this Court applied was '. . . that reasonable degree of care and skill which physicians and surgeons ordinarily exercise in the treatment of their patients . . ..' Accord, Dashiell v. Griffith, 84 Md. 363, 380-81, 35 A. 1094, 1096 (1896) ('the amount of care, skill and diligence required is not the highest or greatest, but only such as is ordinarily exercised by others in the profession generally'); cf. McClees v. Cohen, 158 Md. 60, 66, 148 A. 124 (1930). As we noted in Riatt, this rule, which makes no reference to the defendant-physician's community, was followed in this state prior to 1962. See Lane v. Calvert, 215 Md. 457, 462, 138 A.2d 902, 905 (1958) (standard of care 'such as is ordinarily exercised by others in the profession generally'). Indeed, it has been quoted occasionally since 1962. Nolan v. Dillon, 261 Md. 516, 534, 276 A.2d 36, 46 (1971) (standard of care 'such as is ordinarily exercised by others in the profession generally'); Johns Hopkins Hospital v. Genda, 255 Md. 616, 620, 258 A.2d 595, 598 (1969) ('the standard of skill and care ordinarily exercised by surgeons in cases of this kind'), accord, Anderson v. Johns Hopkins Hosp., 260 Md. 348, 350, 272 A.2d 372 (1971).

This Court applied the strict locality rule for the first time in State, use of Solomon v. Fishel, 228 Md. 189, 179 A.2d 349 (1962), the purported authority for this proposition in Maryland. It is important to note, however, that Fishel did not turn on the standard of care issue, but dealt with the proper use of hypothetical questions addressed to medical experts and with a jury instruction involving the plaintiff's burden of proof. Similarly, although references to the strict locality rule, citing Fishel, appear in Tempchin v. Sampson, 262 Md. 156, 277 A.2d 67, 51 A.L.R.3d 1268 (1971), and Kruszewski v. Holz, 265 Md. 434, 290 A.2d 534 (1972), we were not directly confronted with the standard of care issue in either of those cases.

The only reported decision to flatly hold that the strict locality rule applies in Maryland is Dunham v. Elder, 18 Md.App. 360, 306 A.2d 568 (1973), which we did not have occasion to review. There, the Court of Special Appeals read Fishel to stand for the application of the stricter rule. In applying the same rule in this case, the two courts below relied heavily on Dunham, but we hasten to point out that the portents in Raitt were not yet available to them.

In any event, we now explicitly decide for the first time this question of the standard of care to be applied in medical malpractice cases. It should hardly come as a surprise that appellants advocate the adoption of the national standard or, alternatively, the similar locality rule. They claim that their proof satisfied both tests. Appellees, on the other hand, contend for the strict locality rule.

In addressing this issue, we note at the outset that w...

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