Summary
In Wentling v. Jenny, 206 Neb. 335, 293 N.W.2d 76 (1980), however, we suggested that the locality rule is not applicable in cases where the standard of care for a particular procedure has become nationalized.
Summary of this case from Fales v. BooksOpinion
No. 42628.
Filed June 3, 1980.
1. Expert Witnesses: Medical Malpractice: Standard of Care. A specialist from one medical community is competent to testify as an expert witness in a medical negligence case as to the standard of care or skill required in another community, if the witness has knowledge or familiarity with the practice and standard in similar communities. 2. Medical Malpractice: Standard of Care. In the treatment and diagnosis of certain common prevailing diseases, the medical standards of care and skill are national, rather than local or regional.
Appeal from the District Court for Buffalo County: DeWAYNE WOLF, Judge. Reversed and remanded for new trial.
John T. Carpenter and James R. Coe of Carpenter, Fitzgerald Coe, P.C., for appellant.
Harold W. Kay and Stephen W. Kay of Kay Satterfield, and Knapp, Mues Sidwell, for appellees.
Heard before KRIVOSHA, C.J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
This is a medical negligence action brought by Wendell R. Wentling as surviving spouse and as administrator of the estate of his deceased wife, Dortha Ann Wentling, against David E. Jenny, M.D., and B. M. Stevenson, M.D., alleging that the defendants were negligent in failing to timely diagnose and treat carcinoma of the right breast. The jury returned a verdict in favor of both defendants against the plaintiff. Plaintiff filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, which was overruled. For the reasons stated herein, the verdict is set aside and a new trial is ordered.
It is not necessary to review in detail all the facts involved in the foregoing incident. The essential facts are as follows.
The decedent was under the care of Dr. Jenny, a family practitioner in Alma, Nebraska, from June 1972 through December 1974. Dr. Jenny found a mass in decedent's right breast in April 1974, cysts in June 1974, and an enlarged axillary node in October 1974. Dr. Jenny referred the decedent to Dr. Stevenson, a general surgeon practicing principally at the Kearney Clinic, Kearney, Nebraska. Dr. Stevenson first saw the decedent as an outpatient in Alma, Nebraska, in April 1974. At that time he found cysts in the decedent's breast. In October 1974, he also detected the enlarged axillary node. Prior to the examination, Dr. Stevenson did not receive any history from Dr. Jenny as to decedent's complaints or of her past medical history. During their joint medical care, which continued for approximately 8 months, the physicians did not discuss the care and treatment of the decedent's condition with each other. The record discloses that neither doctor undertook biopsies nor any clinical diagnostic means to determine the nature of Mrs. Wentling's condition.
In December 1974, the decedent sought medical advice from Dr. Charles G. Gross in Cambridge, Nebraska. This physician performed a biopsy which established carcinoma of the breast. After various surgical procedures and radiation treatments, Mrs. Wentling died on December 3, 1975.
During the course of the trial, expert testimony was given by Dr. Robert Brittain, a surgeon licensed in Colorado, and certified by the American Board of Surgeons. He testified that he practiced general surgery for approximately 17 years and during that time he diagnosed and treated females afflicted with cancer of the breast. Dr. Brittain stated he was acquainted with the accepted medical standards of medical practice in communities like Alma, Nebraska, as they existed in 1974 and 1975. While he was in private practice in Colorado, he received referrals from Nebraska physicians on patients with particular reference to female patients with cancer. In addition, he instructed medically, general practitioners, general surgeons, and family doctors from the State of Nebraska as well as performed breast surgery in communities similar to Alma, Nebraska.
Defense counsel objected to Dr. Brittain's competency to testify to the standard of care required in Alma, Nebraska. The objection was sustained and an offer of proof was made. It was Dr. Brittain's opinion that neither Dr. Jenny nor Dr. Stevenson met the standard of recognized medical care in Alma, Nebraska, in that they allowed, for approximately 130 days, the patient to go untreated, unadvised, and with no interim examination. Furthermore, the doctors were professionally negligent in not undertaking an immediate biopsy or any clinical diagnostic means to determine the nature of the lymph node but permitted the patient to leave unattended with the only instructions to be reexamined in 2 or 3 weeks.
The record further indicates that Dr. Brittain would have testified that in April 1974, it was his opinion the decedent had a 95 percent to a 100 percent chance of cancer. If the cancer had been properly diagnosed and treated, the decedent would have had a 75 percent survival rate. By May 1974, there was a 100 percent chance of cancer with a survival rate of 70 percent. If the cancer had been properly diagnosed and treated in June 1974, the decedent would have had a survival rate of between 85 percent and 68 percent. And finally, Dr. Brittain would have stated that if the cancer had been treated in October 1974, the decedent would have had a 15 percent chance of survival.
Dr. Brittain would have stated, according to the offer of proof, that there had evolved a national rather than local or geographical standard of medical care in treatment of cancer of the breast. Such a malady is treated the same whether the recipient of the disease and the location of the treatment is in Miami, Florida, or Alma, Nebraska.
While plaintiff assigns several errors, this review is limited to the court's refusal to allow plaintiff's medical expert, Dr. Robert Brittain, to testify about the accepted standard of medical care required of the practice of medicine in Alma, Nebraska.
In light of Dr. Brittain's testimony that he performed breast surgery in rural towns similar to Alma, Nebraska, and that he took referrals from doctors in western Nebraska, he demonstrated sufficient knowledge to testify to the standard of care of the community where defendants' acts were performed. Even if the "locality" rule is applied, that rule requires only that the expert have knowledge of the defendant's community, not that he have actually practiced in the area. "There are no state lines recognized in the Nebraska rules which speak in terms of `similar localities' and `similar communities.'" Kortus v. Jensen, 195 Neb. 261, 269, 237 N.W.2d 845, 850 (1976).
Not only did Dr. Brittain demonstrate sufficient knowledge to testify because of his background and contacts with rural towns similar to Alma, but the nature of the disease and its treatment further supports Dr. Brittain's competence to testify. Cancer is a commonly prevailing disease with common characteristics. If practices within a certain specialty do not vary significantly throughout the country, there is no policy justification for the locality rule.
"We recognize that medical standards of care and skill are becoming national, rather than local or regional." Id.
Another factor contributing to Dr. Brittain's competency to testify is his status as a certified specialist. Both Dr. Stevenson and Dr. Brittain are certified by the American Board of Surgeons. To become a member, a physician must complete requirements in his specialty. The same standards are applied nationally to these specialists.
In light of the growing standardization in medical education, training, and communication, it is a misuse of the rules of evidence to arbitrarily restrict expert witnesses to those who practice in the same community. Dean Prosser notes the following in regard to the locality rule:
The older decisions sometimes stated this as a standard of the "same locality;" but this is now quite generally recognized as too narrow. Later cases expanded it to speak of "the same or similar localities," thus including other towns of the same general type. The present tendency is to abandon any such formula, and treat the size and character of the community, in instructing the jury, as merely one factor to be taken into account in applying the general professional standard.
W. Prosser, Law of Torts 166 (3d ed. 1964), quoted in Douglas v. Bussabarger, 73 Wn.2d 476, 490, 438 P.2d 829, 838 (1968).
In Kortus v. Jensen, we said evidence that the expert had never practiced in the defendant's community goes to the weight to be accorded the evidence by the trier of fact; it does not keep the plaintiff's expert from testifying to a general standard of skill in the defendant's community if he testifies that he is familiar with that standard. See, also, Raitt v. Johns Hopkins Hospital, 274 Md. 489, 336 A.2d 90 (1975); Douglas v. Bussabarger, supra.
The crux of the matter is that the standards to which Dr. Brittain proposed to testify are minimum standards applicable wherever the diagnosis and treatment of cancer of the breast occur. It is error to exclude an expert's testimony solely because he did not actually practice or reside in a community.
The verdict is set aside and the cause remanded for a new trial.
REVERSED AND REMANDED FOR NEW TRIAL.