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New York Medical Malpractice And Standard Of Care
New York Retains A Locality Rule:
A doctor must exercise the reasonable degree of learning and skill ordinarily possessed by physicians and surgeons in the locality where the doctor practices (Pike v. Honsinger, 49 N. E. 760 (1898)). A doctor must use due care, as measured against the conduct of his peers. Due care requires a doctor to use his best judgment in using his skill and knowledge. A doctor must use his best judgment and whatever superior knowledge and skill he has, even if it exceeds that of the average doctor or specialist in the community where he practices (Nestrowich v. Ricotta, 767 N. E. 2d 125 (N. Y. 2002)).
CHANGES TO THE STANDARD OF CARE NATIONWIDE
Medical Malpractice, a treatise on malpractice law, discusses the history of the standard of care in the United States.
1. The standard of care in the late 19th century was that of the ordinary practitioner in the same community. This reflected the limited means of transportation and communication at the time and the differences between rural and urban practitioners.
2. Substantial authority later found this standard too restrictive. In many places, the standard of care was based on the “same general neighborhood” or “similar localities” with similar opportunities for experience.
3. This rule is now mostly abandoned. Courts have recognized a national standard because of the changes brought by modern transportation and communications.
4. Under the “modern formulation,” a physician is bound to possess the ordinary skill, learning, and experience of his profession generally at the time, in any locality with similar opportunities for experience. The question is whether the physician exercised the care and skill of the average qualified practitioner accounting for advances in the profession. The medical resources available to the practitioner are a relevant circumstance that allows the jury to distinguish between facilities and opportunities for continuing education in rural and urban areas. But customary practice in rural areas is not the sole measure of the standard and if an area lacks facilities or specialized expertise, the patient should be advised of where to seek the facilities.
5. The continuing trend is to reject the locality rule and apply the standard of the profession generally, rejecting any rule based on geographic limitation in favor of a national standard. This is especially true for specialists. But many jurisdictions use the “same or similar community, neighborhood, or locality” rule. (Louisell, Medical Malpractice, updated to 2003).
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