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The Locality Rule

The locality rule is the progenitor of the debates over the proper specialty qualifications for an expert witness. The locality rule evolved before the standardization of medical training and certification. During this period, there was a tremendous gulf between the skills and abilities of university-trained physicians and the graduates of the unregulated diploma mills. In many parts of the country, parochialism and necessity combined to create the rule that a physician's competence would be determined by comparison with the other physicians in the community, or at least in similar neighboring communities. The strictest form of the locality rule required the expert to be from the same or a similar community. This made it nearly impossible for injured patients to find experts to support their cases, effectively preventing most medical malpractice litigation.

The underpinnings of the locality rule are diametrically opposed to contemporary specialty training and certification. There is no longer a justification for a rule that shelters substandard medical decision making on the sole excuse that it is the norm for a given community. Many states have explicitly abolished the locality rule for physicians who hold themselves out as certified specialists. Unfortunately, the locality rule is being reinvigorated in some states as a tort reform measure. This resurgence is driven by the problem of access to care and facilities in rural areas.

Proponents of the locality rule often confuse access to facilities with physician competence. A national standard of care implies that the rural physician will have the same training and exercise the same level of judgment and diligence as an urban practitioner. It does not require that the rural physician have the same medical facilities available. If the community does not have facilities for an emergency cesarean section, the physician cannot be found negligent for failing to do this surgery within the 15 minutes that might be the standard in a well-equipped urban hospital.

Under a national standard, however, the physician must inform the patient of the limitations of the available facilities and recommend prompt transfer if indicated. This allows patients to balance the convenience of local care against the risks of inadequate facilities. The protection of a national standard is especially important as rural hospitals attempt to market or retain lucrative medical services that their facilities are not properly equipped to handle.

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