SHIRLEY S. ABRAHAMSON, J.

This is an appeal by Kim and Julie Nowatske from a judgment of the circuit court for Winnebago County, Thomas S. Williams, judge. The circuit court dismissed the complaint upon a jury finding that Mark D. Osterloh, M.D. (the defendant), did not negligently cause the Nowatskes' injuries. Upon certification of the court of appeals pursuant to Wis. Stat. (Rule) 809.61 (1993-94), this court accepted the case but limited its review to the following issue: "Whether standard jury instruction Wis JI — Civil 1023 accurately states the law of negligence for medical malpractice cases?" We conclude that the jury instruction read as a whole was not erroneous. Nevertheless, we also conclude that the instruction should be improved and recommend that the Civil Jury Instruction Committee revise the standard jury instruction Wis JI — Civil 1023 in light of this decision.

Having reached this conclusion, the court would ordinarily dispose of the other issues raised by the parties and determine whether the judgment of the circuit court should be affirmed. However, because we accepted only one issue raised in the Nowatskes' appeal, we cannot reach the other issues. Instead, we must remand the cause to the court of appeals to consider the other issues the Nowatskes raised and to determine the validity of the circuit court's judgment. 1

*425 h — I

We briefly summarize the facts giving rise to this case, recognizing that the parties dispute whether certain events occurred, whether the surgery and care provided by the defendant were negligent and whether the defendant's alleged negligence caused the plaintiffs injury. 2

One morning the plaintiff noticed an area of blurred vision in his right eye. He was referred to the defendant, a retina specialist in Oshkosh, who diagnosed him as having a retinal detachment.

Prior to surgery to repair his retina, the plaintiff signed a consent form explaining the risks and possible complications involved in the proposed treatment. He also viewed a videotape explaining the procedure of retinal reattachment. The parties dispute whether the defendant warned the plaintiff that "blindness" or "loss of vision" could result. 3

The defendant elected to conduct a relatively common procedure, known as scleral buckling, in an effort to reattach the retina. Buckling procedures may raise *426 the intraocular pressure (IOP) in the eye, resulting in blindness.

Prior to placement of the buckle with permanent sutures, the defendant checked the IOP in the plaintiffs eye with his finger and then proceeded to attach the buckle. Subsequently, he again checked the IOP with his finger and concluded that it was within an acceptable range. The parties dispute whether the defendant should have used a tonometer rather than his finger to check the plaintiffs IOP.

On the morning following surgery, the defendant conducted a post-operative visit to assess the success of his surgery. The parties dispute whether the defendant measured the IOP. The defendant tested the plaintiffs vision with an ophthalmoscope, shining a light into the eye to check its response. Noting a normal "back-off' response to the light, he concluded that the surgery had been successful. The parties dispute whether the defendant should have also asked the plaintiff directly whether he could see out of his right eye.

Although the defendant did not administer any pressure-reducing medication, he did prescribe pain relievers for what he assessed as a normal amount of pain following such an operation. The parties dispute whether the prescription of pressure-reducing medication would have been more harmful than beneficial, given the side-effects associated with the medication in question.

Following discharge the plaintiff went home and experienced severe eye pain. Learning that upon discharge the plaintiff had not received the medicine prescribed to alleviate his pain, the defendant called in a prescription of pain-relievers to a local pharmacy. The parties dispute whether the defendant should have also asked for a further description of the plain *427 tiffs pain or spoken with him directly rather than only speaking with the plaintiffs wife.

By the next morning, the swelling around the plaintiffs .eye had subsided. Because the defendant had not indicated when the plaintiffs vision would return, the plaintiff remained unconcerned about his continuing inability to see out of his right eye. At the plaintiffs scheduled follow-up appointment, however, the defendant informed the plaintiff that he would be permanently blind in the right eye. The parties dispute whether the blindness was caused by increased anterior IOP resulting from the surgery or by a discrete vascular event such as an occlusion of the central retinal artery posteriorly.

On April 22, 1991, the plaintiff filed a complaint alleging that the defendant negligently treated him. During a five-day jury trial in January 1993, the plaintiff introduced expert testimony suggesting that if the defendant had utilized reasonable care, the plaintiff would not have lost his eyesight. The defendant, in turn, introduced expert testimony suggesting that the defendant had exercised ordinary care and that a high IOP was not the cause of the plaintiffs blindness.

At the defendant's request and over the plaintiffs objection, the circuit court used various paragraphs from the standard jury instruction pertaining to medical malpractice, Wis JI — Civil 1023, to instruct the jury. 4 In response to the verdict question asking whether the defendant was negligent, the jury answered "no," thus returning a verdict in his favor. The circuit court entered a judgment dismissing the complaint.

*428 II.

We first examine the standard of review applicable to a jury verdict in a case involving a challeiige to the jury instructions.

First, a circuit court has broad discretion when instructing a jury so long as it fully and fairly informs the jury of the rules and principles of law applicable to the particular case. Peplinski v. Fobe's Roofing, Inc., 193 Wis. 2d 6, 24, 531 N.W.2d 597 (1995) (quoting Fischer v. Ganju, 168 Wis. 2d 834, 849-50, 485 N.W.2d 10 (1992)); D.L. v. Huebner, 110 Wis. 2d 581, 624, 329 N.W.2d 890 (1983). An instruction that is an incorrect or misleading statement of the law is erroneous.

Second, a circuit court should instruct the jury with due regard to the facts of the case. Carlson v. Drews of Hales Corner, Inc., 48 Wis. 2d 408, 414, 180 N.W.2d 546 (1970). The court has held that it is error to refuse to instruct on an issue that the evidence raises; it has also held that it is error to instruct on an issue that the evidence does not support. Lutz v. Shelby Mut. Ins. Co., 70 Wis. 2d 743, 750, 235 N.W.2d 426 (1975).

Third, an instruction should not be unduly favorable to any party. While a circuit court has "some leeway in the choice of language and emphasis in framing instructions," the instructions "as a whole must not favor one side or the other but should set forth the respective versions of the evidence of the contestants." Aetna Cas. & Sur. Co. v. Osborne-McMillan Elevator Co., 35 Wis. 2d 517, 529, 151 N.W.2d 113 (1967); see also Huebner, 110 Wis. 2d at 624.

*429 Fourth, an appellate court must consider the instructions as a whole to determine whether the challenged instruction or part of an instruction is erroneous. The instructions are not erroneous if, as a whole, they adequately and properly informed the jury. Peplinski, 193 Wis. 2d at 25; White v. Leeder, 149 Wis. 2d 948, 954-55, 440 N.W.2d 557 (1989). "On review, the language of a jury instruction should not be fractured into segments, one or two of which, when considered separately and out of context, might arguably be in error." State v. Paulson, 106 Wis. 2d 96, 108, 315 N.W.2d 350 (1982).

Fifth, when the circuit court has given an erroneous instruction or has erroneously refused to give an instruction, a new trial is not warranted unless the error is prejudicial. "[A]n error relating to the giving or refusing to give an instruction is not prejudicial if it appears that the result would not be different had the error not occurred." Lutz, 70 Wis. 2d at 751. See also Wis. Stat. § 805.18(2) (1993-94); Helmbrecht v. St. Paul Ins. Co., 122 Wis. 2d 94, 131, 362 N.W.2d 118 (1985).

III.

The plaintiffs claim that Wis JI — Civil 1023 is erroneous and prejudicial focuses on the first three paragraphs of the instruction. As presented to the jury in this case, those paragraphs, virtually unmodified from the pattern instruction, read as follows:

In treating Kim Nowatske, Dr. Osterloh was required to use the degree of care, skill, and judgment which is usually exercised in the same or similar circumstances by the average specialist who practices the specialty which Dr. Osterloh practices, *430 having due regard for the state of medical science at the time Kim Nowatske was treated. The burden in this case is on the plaintiffs to prove that Dr. Oster-loh failed to conform to this standard.

A physician does not guarantee the results of his care and treatment. A physician must use reasonable care and is not liable for failing to use the highest degree of care, skill, and judgment. Dr. Osterloh cannot be found negligent simply because there was a bad result. Medicine is not an exact science. Therefore, the issue you must decide in determining whether Dr. Osterloh was negligent is not whether there was a bad result but whether he failed to use the degree of care, skill, and judgment which is exercised by the average physician practicing the sub-specialty of retinal surgery.

If you find that more than one method of treatment for Kim Nowatske's injuries is recognized, then Dr. Osterloh was at liberty to select any of the recognized methods. Dr. Osterloh was not negligent merely because he made a choice of a recognized alternative method of treatment if he used the required care, skill, and judgment in administering the method. This is true even though other medical witnesses may not agree with him on the choice that was made.

The plaintiff argues that this instruction was erroneous and prejudicial because (1) paragraph one of the instruction substitutes medical custom for reasonable care by defining the degree of care that must be exercised in terms of what the average physician would usually do under the same or similar circumstances and thereby improperly permits the medical profession to set the standard of care for physicians; (2) paragraph two of the instruction is unduly exculpatory by emphasizing the ways in which the defendant was not negligent and is consequently biased toward the defen *431 dant; and (3) paragraph three instructs the jury that it must find for the defendant when an expert witness testifies that the defendant's actions represent a recognized alternative method of procedure and thereby strips the jury of its fact-finding function. 5

We shall examine each of these paragraphs of the jury instruction in turn.

A.

To repeat, the first paragraph of the circuit court's medical malpractice instruction to the jury in this case reads as follows:

*432 In treating Kim Nowatske, Dr. Osterloh was required to use the degree of care, skill, and judgment which is usually exercised in the same or similar circumstances by the average specialist who practices the specialty which Dr. Osterloh practices, having due regard for the state of medical science at the time Kim Nowatske was treated. The burden in this case is on the plaintiffs to prove that Dr. Oster-loh failed to conform to this standard.

The plaintiffs principal objection to this paragraph is that it defines the standard of care as that care usually exercised by the average physician practicing within the same specialty. According to the plaintiff the instruction thus equates the reasonable care required by law with customary medical care as defined by the medical profession, regardless of whether what is customary in the profession reflects what is reasonable in the wake of current medical science.

Because the medical profession is allowed to set its own definition of reasonable behavior in accordance with the customs of the profession, argues the plaintiff, what counts as an exercise of due care is established as a matter of law by doctors rather than as an issue to be resolved by the jury. Under Wis JI — Civil 1023, the plaintiff continues, all a defendant doctor need do is demonstrate that the methods used in treating the patient were customary in the medical profession. Even if the challenged custom is unreasonable and outdated, claims the plaintiff, the fact that it is "usually exercised in the same or similar circumstances by the average physician" is sufficient to shield clearly negligent conduct and negligent practitioners from liability.

The plaintiff is correct in suggesting that physicians, like all others in this state, are bound by a duty *433 to exercise due care. Every person in Wisconsin must conform to the standard of a reasonable person under like circumstances; so too, then, "[t]he duty of a physician or surgeon is to exercise ordinary care." Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1, 11, 227 N.W.2d 647 (1975). As the amicus brief of the State Medical Society of Wisconsin correctly states, "the basic standard — ordinary care — does not change when the defendant is a physician. The only thing that changes is the makeup of the group to which the defendant's conduct is compared." Brief for the State Medical Society of Wisconsin as Amicus Curiae at 2.

The Medical Society's characterization of how the law gauges whether physicians have met their duty of reasonable care is correct. Generally a determination of negligence involves comparing an alleged tortfeasor's standard of care with "the degree of care which the great mass of mankind exercises under the same or similar circumstances." Wis JI — Civil 1005. When a claim arises out of highly specialized conduct requiring professional training, however, the alleged tortfeasor's conduct is compared with the conduct of others who are similarly situated and who have had similar professional training. 6

Thus physicians are required to exercise reasonable care, a standard to which they have been held since *434 early Wisconsin case law. In Reynolds v. Graves, 3 Wis. 371 [416], 375-76 [421-22] (1854), a physician's duty of care was also expressed as the obligation "to use reasonable professional skill and attention" and "to use due and reasonable skill and diligence" in an effort to cure the patient.

In Gates v. Fleischer, 67 Wis. 504, 507, 30 N.W. 674 (1886), the court repeated that the defendant physician "was bound to exercise reasonable skill and care in the treatment of the plaintiff." The court then proceeded to define that care in language similar to that now incorporated into the first paragraph of Wis JI — Civil 1023, stating that the physician "was bound to bring to [the plaintiffs] aid and relief such skill as is ordinarily possessed and used by physicians . . . having regard to the advanced state of the profession at the time of treatment." 7

These early cases demonstrate that the standard of reasonable care applicable to all people in this state applies to physicians in this state as well. Subsequent case law has confirmed and amplified what these early cases announced. 8

*435 The cases also demonstrate, as the plaintiff urges, that should customary medical practice fail to keep pace with developments and advances in medical science, adherence to custom might constitute a failure to exercise reasonable care. The court explained its aversion to equating custom with reasonable care in abolishing the locality rule. The locality rule, observed the court, allowed a small group, through its "laxness or carelessness," to "establish a local standard of care that was below that which the law requires." Shier v. Freedman, 58 Wis. 2d 269, 280, 206 N.W.2d 166 (1973) (quoting Pederson v. Dumouchel, 431 P.2d 973 (Wash. 1967)). But "[n]egligence," the court continued, "cannot be excused on the ground that others in the same locality practice the same kind of negligence. No degree of antiquity can give sanction to usage bad in itself." Id. Since technological changes insured that there was no longer any "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 *436 and practices adopted," id., the court concluded that the reasons prompting the abolition of the locality rule elsewhere applied "with equal logic and persuasion in Wisconsin." Shier, 58 Wis. 2d at 283.

Wis JI — Civil 1023 incorporates the reasoning of Shier, not only by defining reasonable care as that "which is usually exercised in the same or similar circumstances by the average physician" but also by requiring that this definition of care itself be shaped by a "due regard for the state of medical science at the time plaintiff was treated." If what passes for customary or usual care lags behind developments in medical science, such care might be negligent, despite its customary nature. 9

Both the amicus brief of the State Medical Society of Wisconsin and the defendant have acknowledged *437 that the first paragraph of Wis JI — Civil 1023 requires that custom must be dynamic to be reasonable. As interpreted by the Medical Society, the portion of Wis JI — Civil 1023 which instructs the jury to judge the defendant's conduct with "due regard for the state of medical science at the time the plaintiff was treated" means that "[p]laintifis can always, if appropriate, present evidence regarding the 'state of medical science' to show that a professional custom is obsolete or unreasonable." Brief for the State Medical Society of Wisconsin as Amicus Curiae at 3. 10

The defendant interprets the same jury instruction language as applying "a dynamic standard" to professionals because the standard "changes as the state of knowledge of the profession changes." Brief for Defendant at 17. "Absent a dynamic standard," the defendant continues, "the law could not adjust to changes and improvement in medical science." Id. at 18. At oral argument before this court, counsel for the defendant stated that if a particular custom in the medical profession failed to keep pace with what developments in medical science had rendered reasonable, *438 the plaintiff could introduce evidence demonstrating that the custom in question constituted negligent conduct.

We agree with the parties and the Medical Society that while evidence of the usual and customary conduct of others under similar circumstances is ordinarily relevant and admissible as an indication of what is reasonably prudent, customary conduct is not disposi-tive and cannot overcome the requirement that physicians exercise reasonable care. 11

The standard of care applicable to physicians in this state can not be conclusively established either by what the majority of practitioners do or by a sum of the customs which those practitioners follow. It must instead be established by a determination of what it is reasonable to expect of a professional given the state of *439 medical knowledge at the time of the treatment in issue.

We recognize that in most situations there will be no significant difference between customary and reasonable practices. In most situations physicians, like other professionals, will revise their customary practices so that the care they offer reflects a due regard for advances in the profession. An emphasis on reasonable rather than customary practices, however, insures that custom will not shelter physicians who fail to adopt advances in their respective fields and who consequently fail to conform to the standard of care which both the profession and its patients have a right to expect.

The issue then is whether the first paragraph of the instruction conveys the correct legal message that the defendant is held to a standard of reasonable care, skill and judgment and that reasonable care, skill and judgment are not necessarily embodied by the customary practice of the profession but rather represent the practice of physicians who keep abreast of advances in medical knowledge.

We conclude that the first paragraph of Wis JI — Civil 1023, read in conjunction with the remainder of the instructions given, conveys this message. The first paragraph speaks of the degree of care, skill, and judgment usually exercised in the same or similar circumstances by the average specialist. The second paragraph expressly states that a physician must use reasonable care. The third paragraph cautions that even a physician who has chosen a recognized method of treatment can nevertheless be found negligent for failing to exercise "the required care, skill, and judgment in administering the method" chosen. And much *440 like the first paragraph of the plaintiffs proposed instruction, the first paragraph of the instruction given requires that in determining the degree of care, skill and judgment required of a physician, "due regard" should be given to "the state of medical science." The phrase "due regard for the state of medical science" tells the jury that a reasonably competent practitioner is one who keeps up with advances in medical knowledge.

Paragraph one of the plaintiffs proposed instruction, see supra note 5, is substantially the same as paragraph one of the instruction given except that the plaintiffs proposed instruction uses the word "reasonable" to describe the physician, while the instruction given uses the word "average."

The word "average" is problematic, as we explain more fully below. Viewed as a whole, however, the instruction given does not imply that the degree of care, skill and judgment expected of a doctor is set by the customs of the profession. Consequently, we disagree with the plaintiffs claim that the first paragraph of Wis JI — Civil 1023 allows medical custom to be dis-positive regarding what constitutes reasonable medical care.

Nevertheless, the plaintiffs arguments demonstrate that this pattern jury instruction could be improved, and we conclude that the instruction should be revised.

The Civil Jury Instruction Committee's accompanying comment to Wis JI — Civil 1023 correctly states that the "basic inquiry with respect to the defendant's conduct [should] be framed in simple terms of negligence" and that " [failure on the part of the doctor to conform to the applicable standards of care constitutes negligence." But Wis JI — Civil 1023 itself neither *441 frames the standard of care in simple terms of negligence nor informs the jury that failure to conform to the applicable standard of care constitutes negligence. 12

The instruction's failure to define negligence is exacerbated by its use of the word "average" to denote the subset of physicians with whom an alleged tortfeasor is to be compared. The fallacy in the "average" formulation is that it bears no intrinsic relation to what is reasonable. As the American Law Institute stated in its commentary to sec. 299A Restatement (Second) of Torts (1965), "those who have less than . . . average skill may still be competent and qualified. Half of the physicians of America do not automatically become negligent in practicing medicine . . . merely because their skill is less than the professional average." 13

The Civil Jury Instruction Committee's comment to Wis JI — Civil 1023 tacitly recognizes the difficulty with the word "average," stating that it interprets "average" in the instruction and in the court's decisions on which the instruction is based "to mean a typical *442 physician in the same class and not a midpoint concept." "The Committee does not believe," the comment continues, "that measuring a doctor's conduct against the conduct normally exercised by physicians changes the standard of conduct from reasonable care to average care." 14

On reflection, we too have reservations about the reference to "average" in Wis JI — Civil 1023 and conclude that this word should be eliminated. Loaded as it is with mathematical connotations, the word could distract a jury from its true purpose in a medical malpractice case: an investigation of whether the alleged tortfeasor exercised reasonable care. Reasonable care cannot be established by determining whether a physician provided care above or below the mean of the medical profession, but rather must be determined by assessing whether a patient received the standard of care he or she might reasonably expect from that practitioner, with due regard for the state of medical science at the time of treatment.

B.

The second paragraph of the circuit court's medical malpractice instruction to the jury in this case reads as follows:

*443 A physician does not guarantee the results of his care and treatment. A physician must use reasonable care and is not liable for failing to use the highest degree of care, skill, and judgment. Dr. Osterloh cannot be found negligent simply because there was a bad result. Medicine is not an exact science. Therefore, the issue you must decide in determining whether Dr. Osterloh was negligent is not whether there was a bad result but whether he failed to use the degree of care, skill, and judgment which is exercised by the average physician practicing the sub-specialty of retinal surgery.

The plaintiff does not suggest that this paragraph in any way misconstrues or misrepresents prior case law, from which much of the paragraph's language is derived. See, e.g., Kuehnemann v. Boyd, 193 Wis. 588, 592-93, 214 N.W. 326 (1927) ("we see no reason why proof of a bad result should constitute proof of negligence on the part of the physician"); Francois v. Mokrohisky, 67 Wis. 2d 196, 201, 226 N.W.2d 470 (1975) (medicine "is not an exact science, and even the very best of [physicians] can be wrong in diagnosis or procedure"). See also Hoven v. Kelble, 79 Wis. 2d 444, 456, 256 N.W.2d 379 (1977).

The plaintiff characterizes the paragraph as argumentative, however, because it allegedly accords undue emphasis to the defendant's case by repeatedly telling the jury what is not negligent without ever explaining what negligence is. Furthermore, argues the plaintiff, the undue prominence accorded what is not negligent in the first two paragraphs is exacerbated by the third paragraph, which also instructs the jury regarding what behavior is not negligent when it states that a physician choosing an alternative method of treatment is not negligent so long as he or she exercises the requisite degree of care.

*444 Compounding the second paragraph's allegedly disproportionate emphasis on behavior which is not negligent, argues the plaintiff, the facts in this case did not merit giving the first sentence of that paragraph. Although the first sentence simply states that a doctor does not guarantee a favorable result, the plaintiff never claimed that the defendant was guaranteeing results. Hence in giving this part of Wis JI — Civil 1023, insists the plaintiff, the circuit court did not fulfill the requirement that an "instruction must be germane to the situation at hand and must be framed in light of the evidentiary issues." Carlson, 48 Wis. 2d at 414.

Finally the plaintiff contends that by repeatedly emphasizing forms of behavior which are not negligent, Wis JI — Civil 1023 ignores this court's admonition that an instruction "should not give undue prominence to the contention of one party without giving equal prominence to the contention of the other party." Kuklinski v. Dibelius, 267 Wis. 378, 381, 66 N.W.2d 169 (1954).

We agree with the plaintiff that the circuit court need not have given the instruction's "no guarantee" language and we acknowledge that the second paragraph of Wis JI — Civil 1023 lárgely defines negligence through what is not negligent. Nevertheless, we conclude that the instruction is not erroneous.

First, concepts are frequently defined by what they are not. For reasons suggested by the plaintiff himself in mounting his attack against custom, defining negligence by what it is not is especially applicable here because the concept requiring definition is necessarily dynamic and changing.

Second, even assuming arguendo that the disputed sentences are in error, we again emphasize that when we review jury instructions, their language "should not be fractured into segments, one or two of *445 which, when considered separately and out of context, might arguably be in error." Paulson, 106 Wis. 2d at 108. Any error, the Paulson court instructs us, "must permeate the underlying meaning of the instruction" for there to be reversible error. Id.

When read in the context of both the remaining portions of Wis JI — Civil 1023 and the instructions as a whole, any alleged bias in the second paragraph of this instruction is readily dissipated. As the defendant points out in his brief to this court, the fifth paragraph of Wis JI — Civil 1023, which addresses the relation between negligence and cause and which was also given at trial, could be perceived as demonstrating a bias in favor of the plaintiff. 15 Similarly, as the defendant suggested in oral argument before this court, one could conclude that the damages instructions given to the jury at trial were erroneous because of their focus on the plaintiffs suffering. 16

We would reject such arguments, as we reject the one made here by the plaintiff. While jury instructions can appear to be biased or argumentative when read in isolation, the litmus test applied by this court when *446 reviewing such instructions is whether that bias persists when the instructions are read together. Read together with the remaining instructions given by the circuit court, the second paragraph of Wis JI — divil 1023 passes that test. We therefore conclude that the second paragraph of Wis JI — Civil 1023 as given in this case was not erroneous. 17

C.

The third paragraph of the circuit court's medical malpractice instruction to the jury in this case reads as follows:

If you find that more than one method of treatment for Kim Nowatske's injuries is recognized, then Dr. Osterloh was at liberty to select any of the recognized methods. Dr. Osterloh was not negligent merely because he made a choice of a recognized alternative method of treatment if he used the required care, skill, and judgment in administering the method. This is true even though other medical witnesses may not agree with him on the choice that was made. 18

The plaintiff contends that the last sentence of this paragraph of the instruction invades the province of the jury by requiring the jury to disregard other expert testimony and to conclude that a physician has not *447 acted negligently when any expert testifies that the physician pursued a recognized method of treatment. Not only does such an instruction unduly favor the defendant, the plaintiff insists, but it also conflicts with another instruction given the jury, Wis JI — Civil 260 ("Expert Testimony"), which confers úpon the jury the right to determine the credibility of experts. 19

In response, the defendant asserts that the purpose of the third paragraph in the instruction is to inform the jury that there may be more than one accepted method of treatment and that a doctor may not be held negligent merely because the doctor made a choice of a recognized alternative method of treatment.

We disagree with the plaintiffs interpretation of the third paragraph of JI — Civil 1023.

First, the opening of the third paragraph states that a doctor cannot be excused for utilizing an alternative method until "you [the jury] find that more than one method of treatment... is recognized." Thus the instruction insures that it is for the jury, exercising its role as fact-finder, to determine whether there is more than one method of treatment as well as whether the treatment method chosen is among those methods recognized as acceptable.

Second, the circuit court informed the jurors that they were "the sole judges of the credibility of the witnesses and the weight to be given to their testimony" *448 and that while " [o] pinion evidence was admitted in this case to help you reach a conclusion," "[y]ou are not bound by any expert's opinion." See Wis JI — Civil 215; Wis JI — Civil 260.

Jury instructions are to be construed as a whole, Paulson, 106 Wis. 2d at 108, and "[w]e must assume the jury followed the instructions," Johnson v. Pearson Agri-Systems, Inc., 119 Wis. 2d 766, 776, 350 N.W.2d 127 (1984). Consequently, we must assume that the jurors listened and adhered to those portions of the circuit court's instructions informing them that they were not bound by any expert's opinion regarding what procedures were "recognized" or whether the defendant acted negligently.

Third, we disagree with the plaintiffs claim that the final sentence of this paragraph of the instruction requires a finding of non-negligence whenever any expert testifies that an allegedly negligent physician has pursued an accepted treatment method. The sentence states that "[t]his is true even though other medical witnesses may not agree ... on the choice [of methods] that was made." The "this" which is "true" refers to the antecedent sentence, which states that a physician is not negligent merely because he chose a recognized alternative method. As that preceding sentence also makes clear, to be negligent a physician must also fail to exercise reasonable care in using that recognized alternative method.

The third paragraph of the instruction would be clearer if its final sentence were eliminated or if the paragraph stated explicitly that the jury alone determines which methods of treatment are "recognized" on the basis of the expert testimony in evidence. But these suggested revisions do not alter our conclusion that the *449 third paragraph adequately instructed the jury regarding its prerogative to assess and weigh the evidence before it in reaching a verdict.

To sum up, we conclude that these three paragraphs of Wis JI — Civil 1023, read as a whole and in conjunction with the other instructions given in this case, were not erroneous. At the same time, however, we recognize that the plaintiff has pointed to a number of ways in which the first three paragraphs of Wis JI — Civil 1023 might be clarified and thereby improved. Hence even though we hold that the pattern jury instruction was not erroneous in this case, we also conclude that it should be revised.

For the reasons set forth we remand the cause to the court of appeals for further proceedings consistent with this opinion.

By the Court. — The cause is remanded to the court of appeals.

John A. Fogleman, Justice.

The appellants, the husband and the guardian of Yvonne Gambill, brought this action for damages assertedly resulting from medical malpractice. After an extended trial there was a verdict for the defendant, Dr. Stroud. The principal question on appeal is whether we should modify our prevailing “same or similar locality” rule in malpractice cases, by which a physician, surgeon, or dentist is held only to the standard of competence that obtains in his own locality or in a similar locality. The rule is fully stated in AMI 1501, which the trial judge gave over the plaintiffs’ objections. AMI Civil 2d, 1501 (1974).

In discussing the issues of law that are presented we need not describe in detail the serious injuries suffered by Mrs. Gambill. The appellee and another surgeon were prepared to operate upon the patient in a Jonesboro hospital, for the removal of a thyroid cyst. The operation was not performed because, after the patient had been put under anesthesia, she suffered a cardiac arrest (and later respiratory arrest) that resulted in serious and irreversible brain damage. The plaintiffs’ claim against the anesthesiologist was settled before trial. It is not argued that there was no substantial evidence to support the verdict.

The evidence disclosed that Dr. E. B. Sparks, the anesthesiologist who participated, told Dr. Stroud that the patient was ready for surgery, but the procedure was stopped immediately after Dr. Stroud made an incision and found that Mrs. Gambill’s blood was “very dark.” This blood coloration is indicative of an inadequate oxygen supply in the blood. On the evidence admitted, there was a jury question as to Dr. Stroud’s negligence.

Appellants offered the testimony of Dr. James Mayfield and Dr. George Mitchell, Jonesboro anesthesiologists, Dr. Sparks, also of Jonesboro, Dr. Charles W. Quimby, an anesthesiologist who practices and teaches at Vanderbilt University Hospital and Dr. Davis A. Miles, a Little Rock neurologist, who testified that he was familiar with the standards of practice in Jonesboro or similar communities. Dr. Quimby had taught and practiced anesthesiology for five years at the Medical Center in Little Rock, during which time he conducted statewide seminars relating to types and techniques of anesthesia for general practitioners, surgeons, obstetricians and anesthesiologists. He had obtained a law degree from the University of Pennsylvania in 1959. There is no indication that any witness offered by plaintiffs was not permitted to testify, or that any pertinent testimony of any medical witness for plaintiffs was excluded. Appellants state in their brief that it was uncontroverted that the standards of medical practice in Jonesboro, Little Rock and Memphis were comparable. Appellants did not offer any instruction in lieu of AMI 1501. All of the parties tried this case under the same or similar locality rule.

In spite of the failure of appellants to show how they were prejudiced in the introduction of evidence or to offer an instruction expressing their theory of the proper test of negligence in a medical malpractice case, they did make a specific objection to reference to locality. We might well conclude our discussion on the instruction on the failure to offer a modified or substitute instruction. See Wharton v. Bray, 250 Ark. 127, 464 S.W. 2d 554. We consider the objection to support the contention that the locality rule is obsolete. We think, however, that the same or similar locality rule articulately expressed in AMI 1501 is proper, adequate, viable and not unduly restrictive on the evidence a plaintiff may introduce. In spite of its abandonment in some jurisdictions and limitations in others, it may well be the majority rule. See 61 Am. Jur. 2d 239, Physicians & Surgeons, § 116; 70 CJS 950, Physicians & Surgeons, § 43; Restatement of the Law, Torts 2d (1965) 73, § 299A. It has been recently applied in many jurisdictions. See e.g., Goedecke v. Price, 19 Ariz. App. 320, 506 P. 2d 1105 (1973); Peters v. Gelb, 303 A. 2d 685 (Del. Super. 1973); Bailey v. Williams, 189 Neb. 484, 203 N.W. 2d 454 (1973); Karrigan v. Nazareth Convent & Academy Inc., 212 Kansas 44, 510 P. 2d 190 (1973); Burton v. Smith, 34 Mich. App. 270, 191 N.W. 2d 77 (1971); McBride v. U.S., 462 F. 2d 72 (9 Cir., 1972).

The thrust of appellants’ argument is that the rule set out in AMI 1501 is no longer applicable to modern medicine, because doctors practicing in small communities now have the same opportunities and resources as physicians in large cities to keep abreast of advances in the medical profession, due to availability of the Journal of the American Medical Association and other journals, drug company representatives and literature, closed circuit television, special radio networks, tape recorded digests of medical literature, medical seminars and opportunities for exchange of views between doctors from small towns and those from large cities where there are complexes of medical centers and modern facilities.

However desirable the attainment of this ideal may be, it remains an ideal. It was not shown in this case, and we are not convinced, that we have reached the time when the same postgraduate medical education, research and experience is equally available to all physicians, regardless of the community in which they practice. The opportunities for doctors in small towns, of which we have many, to leave a demanding practice to attend seminars, and regional medical meetings cannot be the same as those for doctors practicing in clinics in larger centers. It goes without saying that the physicians in these small towns do not and cannot have the clinical and hospital facilities available in the larger cities where there are large, modern hospitals, and medical centers or the same advantage of observing others who have been trained, or have developed expertise, in the use of new skills, facilities and procedures, of consulting and exchanging views with specialists, other practitioners and drug experts, of utilizing closed circuit television, special radio networks or of studying in extensive medical libraries found in larger centers.

The rule we have established is not a strict locality rule. It incorporates the similar community into the picture. The standard is not limited to that of a particular locality. Rather, it is that of persons engaged in a similar practice in similar localities, giving consideration to geographical location, size and character of the community. Restatement of the Law, Torts, 2d, 75 Comment g, § 299A. The similarity of communities should depend not on population or area in a medical malpractice case, but rather upon their similarity from the standpoint of medical facilities, practices and advantages. See Sinz v. Owens, 33 Cal. 2d 749, 205 P. 2d 3, 8 ALR 2d 757 (1949). For example, appellants state in their brief that it was uncontroverted that the medical standards of practice in Jonesboro, Little Rock, and Memphis are comparable. Thus, they could be considered similar localities. The extent of the locality and the similarity of localities are certainly matters subject to proof. Modern means of transportation and communication have extended boundaries but they have not eliminated them. See Sinz v. Owens, supra; Tvedt v. Haugen, 70 N.D. 338, 294 N.W. 183 (1940), 132 ALR 379. The opportunities available to practitioners in a community are certainly matters of fact and not law and may be shown by evidence under our own locality rule.

Our locality rule is well expressed in Restatement of the Law, Torts 2d (1965) 73, § 299A, viz:

Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.

It is fallacious to say that our locality rule permits a doctor in one place to be more negligent than one in another place. It is a matter of skill that he is expected to possess, i.e., the skill possessed and used by the members of his profession in good standing, engaged in the same type of practice in the locality in which he practices, or a similar locality. The similar locality rule prevents highly incompetent physicians in a particular town from setting a standard of utter inferiority for the practice of medicine there. Restatement of the Law, Torts 2d, 75, Comment e, § 299A. See also 3 Sherman & Red-field on Negligence 1532, § 617 (1941).

One of the ideas suggested in appellants’ argument is that a national standard of care should be observed. This is also unrealistic. We cannot accept that premise as a matter of law and we certainly do not take the theory that such a standard exists to Be so well established that it can be judicially noticed. If it does factually exist to any extent, or in any case, then certainly it can be shown by evidence. If the medical profession recognizes that there are standard treatments, which should be utilized nation-wide this fact should be readily susceptible of proof under the similar locality rule, because the skill and learning should be the same and all localities would be similar.1 See Annot, 37 ALR 3d 420, 425; Peters v. Gelb, 303 A. 2d 685 (Del. Super. 1973); Rucker v. High Point Memorial Hospital, Inc., 285 N.C. 519, 206 S.E. 2d 196 (1974); Hundley v. Martinez, 151 W. Va. 977, 158 S.E. 2d 159 (1967). The same may be said for any region exceeding the boundaries of a particular city or town. This is much more likely to be true in cases where a specialist, and not a general practitioner like Dr. Stroud, is involved. See Prosser, Law of Torts (4th Ed.) 164, 166, Ch. 5, § 32; Naccarato v. Grob, 384 Mich. 248, 180 N.W. 2d 788 (1970); McGulpin v. Bessmer, 241 Ia. 1119, 43 N.W. 2d 121 (1950). For this reason, cases cited by appellant which involved specialists are of little persuasive weight. After all, in all but the obvious cases of negligence, the question whether the defendant physician has applied that degree of skill and learning which the law requires him to possess is dependent upon medical testimony. Davis v. Kemp 252 Ark. 925, 481 S.W. 2d 712.

One of the difficulties with the strict locality rule was the tendency to apply it as a rigid, exclusionary rule of evidence, rather than a definition of a standard of care required of a physician. Of course the standard does necessarily have a relationship to the admissibility of evidence. See Couch v. Hutchison, 135 S. 2d 18 (Fla. App. 1961). But the similar locality rule is not necessarily so restrictive, and an expert witness need not be one who has practiced in the particular locality or who is intimately familiar with the practice in it in order to be competent to testify if the appropriate foundation has been laid to show that he is familiar with the standards of practice in a similar locality, either by his testimony or by other evidence showing the similarity of localities. For examples of such witnesses held competent and testimony held admissible under a similar locality rule, see Dunham v. Elder, 18 Md. App. 360, 306 A. 2d 568 (1973); Sinz v. Owens, supra; Iterman v. Baker, 214 Ind. 308, 15 N.E. 2d 365 (1938); Kirchner v. Dorsey, 226 Iowa 283, 284 N.W. 171 (1939); Turner v. Stoker, 289 S.W. 190 (Tex. Civ. App., 1926); Riley v. Layton, 329 F. 2d 53 (10 Cir., 1964); Sales v. Bacigalupi, 47 Cal. App. 2d 82, 117 P. 2d 399 (1941); Dickens v. Everhart, 284 N.C. 95, 199 S.E. 2d 440 (1973).

It is also suggested that modern transportation and communications have so extended the borders of the locality as to bring the physician in a smaller community within the boundaries of a larger community where appropriate treatment may be assured to a patient, even though the physician in the small town be unable to give it because of limited facilities or training. Here again, the appropriate community standard may require that these doctors send such patients as may be taken to such larger centers,2 but when this is not practicable, the small town doctor should not be penalized for not utilizing means or facilities not reasonably available to him.3 This, too, is a fact question which may be inquired into under our similar locality rule. Furthermore, there is nothing in the instruction that limits the locality to the limits of a city. Lewis v. Johnson, 12 Cal. 2d 558, 86 P. 2d 99 (1939). It may be comprised of a much larger district or area, depending upon the particular facts and circumstances. See Warnock v. Kraft, 30 Cal. App. 2d 1, 85 P. 2d 505 (1938); Kirchner v. Dorsey, supra. For e.g., it might be established by evidence that Jonesboro is a part of a locality that also includes Memphis, Tennessee.

It also seems that appellants have overlooked the impact of better medical education, modern technology, and improved means of travel and communication upon the law as it now exists. If the impact is as great as they theorize then no change in the law is necessary. See Peters v. Gelb, 303 A. 2d 685 (Del. Super. 1973). These factors have already elevated the degree of skill and learning ordinarily possessed and used by members of the medical profession in every locality, if that premise is correct.

It has also been suggested that we should adopt a standard of care and skill based upon that of the “average qualified practitioner” and permit consideration of the medical resources available to the practitioner as a circumstance in determining the skill and care required. Not only would this put a jury in a predicament as to how to arrive at an “average” but it seems to us that requiring the skill of the “average qualified practitioner” automatically makes approximately one-half of the doctors guilty of malpractice. The question is not one of the “average” or “medium” skill, but of the minimum common skill. Prosser, Law of Torts, 165, Ch. 5, § 32. See Restatement of the Law, Torts, 2d, 75, Comment e, § 299A. As pointed out heretofore, the availability of medical resources already has had a bearing upon the question of similarity of localities and, to some extent, upon the establishment of the boundaries of a locality.

As a subordinate contention the appellants argue that the court should not have allowed the jury to take the typewritten instructions into the jury room because these appellants objected to that procedure. The statute requires only that the court deliver a copy of the instructions to the jury when counsel for all parties so request. Ark. Stat. Ann. § 27-1732.1 (Repl. 1962). That does not mean that any party has an absolute veto power when all parties do not agree. The question is still one falling within the trial court’s discretion, as it was before the present statute was adopted. Rutledge v. State, 222 Ark. 504, 262 S.W. 2d 650 (1953). We find no abuse of discretion in this case.

The judgment is affirmed.

Conley Byrd, Justice,

concurring. While I must agree that there is some merit to the minority’s criticism of the “same or similar locality” rule, I find that it has become firmly established as part of the law of this State. The rule did not come into our law as the result of an incorrect interpretation of the Constitution of this State or the United States as was the situation in Parish v. Pitts, 244 Ark. 1239, 429 S.W. 2d 45 (1968), and therefore it is subject to change by the General Assembly. In that situation under Article 2, § 12 of the Constitution of Arkansas this court is prohibited from suspending or setting aside the law with respect to the “same or similar locality” rule. Article 2, § 12 provides:

“No power of suspending or setting aside the law or laws of the State shall ever be exercised except by the General Assembly.”

For the reasons stated, I concur in the majority opinion.

George Rose Smith, Justice,

dissenting. This case illustrates the unjust situation that necessarily results from the “same or similar locality” rule: The plaintiff’s difficulty in obtaining expert medical testimony. Here Dr. Quimby, a qualified expert who had taught in medical schools in Arkansas and Tennessee, testified for the plaintiffs. On cross-examination Dr. Quimby admitted that he had not practiced in Jonesboro and was therefore not familiar with the standard of care adhered to by general practitioners in Jonesboro. Defense counsel then repeatedly asked Dr. Quimby, in various forms, what was essentially the same question: “If you do not know what the standard of care in Jonesboro, Arkansas, is, then what is your point of reference, how do you compare it to another locality?” The witness, understandably, could not give an altogether satisfactory answer to the question, despite his unquestioned qualifications as a medical expert. Since AMI 1501 compels the plaintiff to prove his charge of negligence by the same or'similar locality rule, defense counsel were obviously in a position to make a devastating jury argument with regard to Dr. Quimby’s testimony.

Such injustice is unavoidable under the rule adhered to by the majority. As a practical matter, a plaintiff simply has no real hope of finding a favorable medical witness whose testimony cannot be seriously weakened by the line of questioning adopted in this case. Thus the local physician obtains a demonstrably unfair advantage. As Prosser observes, the present tendency in the courts is to abandon the same or similar locality rule and, in its stead, to treat the size and character of the community as merely one factor to be taken into account by the jury in applying the general professional standard. Prosser, Torts, p. 167 (3d ed., 1964). I think we should have no hesitancy in taking this opportunity to adopt a rule that is becoming commonplace in other jurisdictions and that is unquestionably fair to both sides in the lawsuit.

Elsijane T. Roy, Justice,

dissenting. The writer is of the view that the narrow “same or similar locality” rule in malpractice cases has long outlived its usefulness. The tenor of the briefs filed by appellants and appellee both reflect the tremendous advances made in medical science during the last twenty years. The opinion of the majority in this case also recognizes the progress made in the field of medicine.

In Kolesar v. United States, D.C., 198 F. Supp. 517 (1961), the court pointed out that:

. . . [T]he locality rule of medical standards was originally formulated when communications were slow or virtually non-existent, and that it has lost much of its significance today with the increasing number and excellence of Medical Schools, the free interchange of scientific information, and the consequent tendency to harmonize medical standards, throughout the country. * * *

The North Carolina Supreme Court in Wiggins v. Piver, 276 N.C. 134, 171 S.E. 2d 393 (1970), stated:

The “locality rule” (never recognized in England) had its origin in the very old and faraway days when there were many little institutions which called themselves medical schools. Students were admitted who could show a high school diploma or furnish a certificate from a school piincipal that the bearer had completed the “equivalent” of a high school course of study. At the end of the course, he was given an M.D. degree. Passing the licensing board was in the nature of a formality. In many rural communities, ever thereafter the doctor was on his own. Frequent refresher courses, now generally attended, were unknown. * * *

Now medical schools admit only college graduates. They are equipped to the highest point of efficiency and turn out doctors who must continue their studies by internships and by actual experience under expert supervision. They continue to study, continue to attend refresher courses, and have access to journals which afford them opportunity to keep them current in the latest treatments and procedures.

It would serve no useful purpose to set out at length the many jurisdictions which have already recognized the need for change and have modified the rule to be applied in malpractice cases.

I agree completely with the comments in the dissenting opinion of Justice George Rose Smith concerning a plaintiff’s difficulty in obtaining expert medical testimony under the present rule. Medical science recognizes no geographical boundaries in its broad expanse in the field of progress, and neither should the law place such restrictive impositions upon the rule establishing the degree of skill and care required of medical practitioners.

In criticizing a standard of care and skill based upon that of the “average qualified practitioner”, the majority opinion states “[T]he question is not one of the ‘average’ or ‘medium’ skill but of the minimum common skill.” (emphasis added). In the writer’s opinion this was not the test and has never been the test applied in Arknasas. As far back as Dunman v. Raney, 118 Ark. 337, 176 S.W. 339 (1915), to our present AMI Civil 2d 1501 (1974), the standard established has been that in treating or operating upon a patient a physician or surgeon must possess, and using his best judgment, apply with reasonable care the degree of skill and learning ordinarily possessed and used by members of his profession in good standing engaged in the same type of practice or specialty in the same or a similar locality to that in which he practices.

In the writer’s opinion there is no need to change the standard established by AMI 1501 except to remove the restrictiveness of the “same or similar locality” rule and to give due regard to the medical resources available as one factor in determining the skill and care required of a physician or surgeon. For the foregoing reasons I respectfully dissent.

Amendment of Rule 11, Rules of Supreme Court October 20, 1975

PER CURIAM

Paragraphs (f) and (g) of Supreme Court Rule 11 are amended to read as follows, effective November 1, 1975:

(f) Appellant’s Duty to File Abstract and Brief. — In all felony cases it is the duty of the appellant, whether he is represented by retained counsel, appointed counsel, or a public defender, or acts pro se, to abstract such parts of the record, but only such parts of the record, as are material to the points to be argued in his brief. (The former requirement that the Attorney General supply an abstract in felony cases no longer obtains.) The appellant’s brief in chief, before its printing, shall not exceed 40 doublespaced typewritten pages, with a similar 10-page limit upon the reply brief, except that if either limitation is shown to be too stringent in a particular case it may be waived by the Court on motion. See paragraph (g) of this Rule with respect to the printing of an indigent’s abstract and brief. The State’s brief shall be subject to the same page limit.

When the sentence is death or life imprisonment, the Court must review all errors prejudicial to the appellant. Act 333 of 1971; Ark. Stat. Ann. § 43-2725 (Supp. 1973). To make that review possible the appellant must abstract all objections that were decided adversely to him in the trial court, together with such parts of the record as are needed for an understanding of the objection. The Attorney General will make certain that all objections have been so abstracted and will brief all points argued by the appellant and any other points that appear to him to involve prejudicial error.

(g) Printing of Abstracts and Briefs for Indigent Appellants. — When an indigent is represented by appointed counsel or a public defender, his attorney may have the abstract and briefs printed by submitting the double-spaced typewritten manuscript to the Attorney General not later than the due date of the brief.

DAVIS, Justice:

This is an appeal by Robert S. McGraw, plaintiff below, from a summary judgment order of the Circuit Court of Wood County dismissing his complaint against the defendant below, St. Joseph’s Hospital.1 On appeal the plaintiff argues that the circuit court committed error in granting summary judgment on the grounds that medical expert testimony was required to show the defendant violated the standard of care in its treatment of him.

I.

FACTUAL BACKGROUND

The facts of this ease are straightforward, though some critical points remain in dispute. On May 10,1991 the plaintiff walked into the defendant’s emergency room complaining of shortness of breath. After several hours of waiting to be seen by medical personnel, the plaintiff was admitted into the hospital. On the morning of May 11, four female hospital personnel attempted to assist the plaintiff back into bed.2 The plaintiff testified during his deposition that he informed the four *117women that he did not believe they could put him in bed because he weighed too much.3 The plaintiffs memory of what happened immediately after making that statement is minimal. He testified that all he could remember is that he “had a sensation of falling.”4 During the early morning hours of May 12 the plaintiff was discovered on the floor near his bed. The plaintiff indicated in his deposition that he fell out of bed.5 The plaintiff further testified that on the afternoon of May 21, four female nurses and nurse’s aides dropped him while attempting to place him in bed.6 He stated that “they had to get men to put me — get me up and put me in bed after they had dropped me[.]” The plaintiff was eventually discharged from the hospital on June 28,1991.

On May 6, 1993 the plaintiff filed the instant action against the defendant. The complaint charged the defendant with dropping or permitting him to fall on two occasions. It was also alleged that he sustained “a fractured neck and other injuries in, about and upon his arms, knees and other parts of his body” as a result of both incidents. After discovery in the case, the defendant moved for summary judgment “premised upon the failure of McGraw to produce expert testimony demonstrating that the hospital deviated from the standard of care and that any deviation caused injury or damage to McGraw.”

By order entered June 16, 1995 the circuit court granted the defendant’s motion for summary judgment on the grounds that “West Virginia law requires that a violation of the standard of care by a health care provider be proven by expert testimony,” but that the plaintiff “is unable to produce expert testimony as to any violation of the standard of care by the Hospitalf.]” This appeal followed. We reverse.

II.

STANDARD OF REVIEW

We stated in syllabus point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) that “[a] circuit court’s entry of summary judgment is reviewed de novo.” See also Syl. pt. 1, Jones v. Wesbanco Bank Parkersburg, 194 W.Va. 381, 460 S.E.2d 627 (1995); Syl. pt. 1, Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995). Syl. pt. 4, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995). We, therefore, apply the same standard as a circuit court. Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459 S.E.2d 329, 335 (1995). In syllabus point 2 of Williams the Court stated:

Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the ease that it has the burden to prove.

Further, in syllabus point 3 of Williams we held:

If the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the non-moving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence *118showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure.

It is through the above legal principles that we decide the merits of this case.

III.

DISCUSSION

We pointed out in Neary v. Charleston Area Medical Center, Inc., 194 W.Va. 329, 334, 460 S.E.2d 464, 469 (1995) that “[w]hen the principles of summary judgment are applied in a medical malpractice ease, one of the threshold questions is the existence of expert witnesses opining the alleged negligence.” Defendant takes the position that medical expert testimony was mandatory in this case pursuant to W.Va.Code § 55-7B-7 (1986), which provides in relevant part:7

The applicable standard of care and a defendant’s failure to meet said standard, if at issue, shall be established in medical professional liability cases by the plaintiff by testimony of one or more knowledgeable, competent expert witnesses if required by the court.

In granting the defendant summary judgment in this ease, the circuit court did not cite the above statute. The circuit court held that our law required “a violation of the standard of care by a health care provider8 be proven by expert testimony[.]” We address the meaning of the above quoted passage from W.Va.Code § 55-7B-7.

A.

West Virginia Code § 55-7B-7

Our traditional rule of statutory construction is set out in syllabus point 2 of Keen v. Maxey, 193 W.Va. 423, 456 S.E.2d 550 (1995) as follows:

“ ‘ “When a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such a case it is the duty of the courts not to construe but to apply the statute. Point 1, syllabus, State ex rel. Fox v. Board of Trustees of the Policemen’s Pension or Relief Fund of the City of Bluefield, et al., 148 W.Va. 369 [135 S.E.2d 262 (1964)].” Syllabus Point 1, State ex rel. Board of Trustees v. City of Bluefield, 153 W.Va. 210, 168 S.E.2d 525 (1969).’ Syl. pt. 3, Central West Virginia Refuse, Inc. v. Public Service Com’n of West Virginia, 190 W.Va. 416, 438 S.E.2d 596 (1993).”

Our examination of the relevant language of W.Va.Code § 55-7B-7 instructs us that it is without ambiguity and that the legislature has not, as argued by the defendant, mandated that expert testimony be used in medical professional liability eases. “ Where the language of a statute is plain and unambiguous, *119there is no basis for application of rules of statutory construction; but courts must apply the statute according to the legislative intent plainly expressed therein.’ Syllabus, Dunlap v. State Compensation Director, 149 W.Va. 266 (140 S.E.2d 448) [1965].” Syl. pt. 1, Kucera v. City of Wheeling, 153 W.Va. 531, 170 S.E .2d 217 (1969).

We hold that W.Va.Code § 55-7B-7 provides that circuit courts have discretion to require expert testimony in medical professional liability cases.9 We are aided in our holding that W.Va.Code § 55-7B-7 provides discretionary authority in the use of experts, by our decision in Neary. The plaintiff in Neary brought a medical professional liability action against the defendant hospital, due to an infection from a back operation. The circuit court in that case granted summary judgment to the defendant, on the basis that the plaintiff could not produce expert testimony that the operation was negligently performed. On appeal the plaintiff contended that expert testimony was not required because the doctrine of res ipsa loquitur applied to the case. Although we cited W.Va. Code § 55-7B-7 in Neary, we did not elaborate upon its meaning.

■ Implicit in our disposition of the Neary case, was the fact that W.Va.Code § 55-7B-7 did not mandate expert testimony in medical professional liability cases. If the doctrine of res ipsa loquitur had applied in that case, medical expert testimony would not have been required. We determined that the doctrine of res ipsa loquitur did not apply in Neary and that the complexity of the issues in that case required expert testimony. See also Farley v. Meadows, 185 W.Va. 48, 404 S.E.2d 537 (1991) (doctrine of res ipsa loqui-tur held not to apply and medical expert testimony needed).

B.

Requirement Of Medical Expert

In determining that W.Va.Code § 55-7B-7 provides for discretionary use of expert testimony in medical professional liability cases, “we will not reverse the trial court’s decision, in the case before us, unless the ... trial court clearly abused its discretion.” Mayhorn, 193 W.Va. at 48, 454 S.E.2d at 93. The circuit court’s ruling in the instant case, on the issue of expert testimony, presents two matters that must be addressed: (1) was expert testimony necessary in this case; and (2) did the plaintiff in fact have an expert?

We note some general principles that our prior cases have developed in this area. In syllabus point 1 of Farley we stated that “ ‘[i]t is the general rule that in medical malpractice cases negligence or want of professional skill can be proved only by expert witnesses.’ Syl. pt. 2, Roberts v. Gale, 149 W.Va. 166, 139 S.E.2d 272 (1964).”

In Totten v. Adongay, 175 W.Va. 634, 638, 337 S.E.2d 2, 6 (1985), the Court stated that “ ‘cases may arise where there is such want of skill as to dispense with expert testimony.’ ” Quoting, in part, Syl., Buskirk v. Bucklew, 115 W.Va. 424, 176 S.E. 603 (1934); Syl. pt. 2, Howell v. Biggart, 108 W.Va. 560, 152 S.E. 323 (1930). We held in syllabus point 4 of Totten that:

In medical malpractice cases where lack of care or want of skill is so gross, so as to be apparent, or the alleged breach relates to noncomplex matters of diagnosis and treatment within the understanding of lay jurors by resort to common knowledge and experience, failure to present expert testimony on the accepted standard of care and degree of skill under such circumstances is not fatal to a plaintiffs prima facie showing of negligence.

Totten recognizes what is known as the “common knowledge” exception to expert testimony.

Was Expert Testimony Necessary In This Case? The defendant takes the position *120that the common knowledge exception10 is not applicable here, because “liability is premised upon complex medical management issues involving professional management.” We have reviewed cases addressing hospital fall incidents and found that a majority of jurisdictions do not require expert testimony in such cases. See Cockerton v. Mercy Hospital Medical Center, 490 N.W.2d 856 (Iowa App.1992)(where patient fell while in x-ray room expert testimony was not required on hospital’s negligence); Walker v. Southeast Alabama Medical Center, 545 So.2d 769 (Ala.1989)(where bed rail left down contrary to doctor’s order and patient fell, no expert testimony required on standard of care); Edelin v. Westlake Community Hospital, 157 Ill.App.3d 857, 109 Ill.Dec. 890, 510 N.E.2d 958 (1987)(expert not required where patient falls while leaving hospital, as matter involved administrative duty to provide escort); Rewis v. Grand Strand General Hospital, 290 S.C. 40, 348 S.E.2d 173 (1986)(hospital’s negligence in allowing patient to fall out of bed did not require expert testimony); Bennett v. Winthrop Community Hospital, 21 Mass.App. 979, 489 N.E.2d 1032 (1986)(ex-pert testimony not required where drugged patient not restrained and he fell getting out of bed); Rice v. Sebasticook, 487 A.2d 639 (Me.1985) (where patient fell out of chair expert testimony not required on issue of hospital’s negligence in allowing patient to sit in chair); Biggs v. Cumberland County Hospital System, Inc., 69 N.C.App. 547, 317 S.E.2d 421 (1984) (where patient is known to be in weakened condition and is left alone in shower, where she falls, expert testimony on standards for nurse’s aides not required); Robbins v. Jewish Hospital of St. Louis, 663 S.W.2d 341 (Mo.App.1983)(expert testimony not required where bed rails not raised and brain damaged patient fell out); Washington Hospital Center v. Martin, 454 A.2d 306 (D.C.App.1982)(mere fact that patient falls in hospital will not normally require expert testimony on hospital’s negligence); Newhall v. Central Vermont Hospital, Inc., 133 Vt. 572, 349 A.2d 890 (1975)(expert testimony not required where nurse failed to respond to sedated patient’s call and patient got out of bed and fell); McEachern v. Glenview Hospital, Inc., 505 S.W.2d 386 (Tex.Civ.App.1974)(ex-pert testimony not needed where patient fell from table while unattended in emergency room); Veesart v. Community Hospital Asso., 211 Kan. 896, 508 P.2d 506 (1973)(ex-pert evidence not required where elderly patient fell while going to bathroom); Gold v. Sinai Hospital of Detroit, Inc., 5 Mich.App. *121368, 146 N.W.2d 723 (1966)(where patient fell from bed after warning nurse she was dizzy and nurse assured her she would brace her, no expert testimony required).

In Cramer v. Theda Clark Memorial Hospital, 45 Wis.2d 147, 172 N.W.2d 427, 428 (1969) the Wisconsin Supreme Court articulated the rationale used by jurisdictions that generally do not require expert testimony in hospital fall cases:

Courts generally make a distinction between medical care and custodial care or routine hospital care. The general rule is that a hospital must in the care of its patients exercise such ordinary care and attention for their safety as their mental and physical condition, known or should have been known, may require.... If the patient requires professional nursing or professional hospital care, then expert testimony as to the standard of that type of care is necessary.... But it does not follow that the standard of all care and attention rendered by nurses or by a hospital to its patients necessarily require proof by expert testimony. The standard of nonmedical, administrative, ministerial or routine care in a hospital need not be established by expert testimony because the jury is competent from its own experience to determine and apply such a reasonable-care standard.

(Citations omitted)(emphasis added).

We find the reasoning of Cramer persuasive and consistent with the direction of our law in this area. We noted in syllabus point 3 of Utter v. United Hospital Center, Inc., 160 W.Va. 703, 236 S.E.2d 213 (1977) that ‘“[a] hospital owes to one who is a patient therein a duty to exercise reasonable care in rendering hospital services to the patient and, in the performance of such duty, due regard must be given to the mental and physical condition of the patient of which the hospital, in the exercise of reasonable care, should have knowledge.’ ” Quoting, Syl. pt. 2, Duling v. Bluefield Sanitarium, Inc., 149 W.Va. 567, 142 S.E.2d 754 (1965). Although the defendant has contended on appeal that complex management issues are involved in this case, the defendant has not articulated such issues. Because the circuit court erroneously assumed that our law makes it mandatory that expert testimony be proffered in all medical professional liability cases, the court did not make a finding on whether complex management issues existed in this ease which would necessitate expert testimony. On remand the circuit court is directed to determine, before the trial of this case, whether complex management issues are involved in the May 21 incident only. As we explain below, the May 12 incident where Mr. McGraw fell out of his hospital bed is ripe for trial on the merits.

Did The Plaintiff In Fact Have An Expert? The record indicates that the plaintiff was prepared to proffer Dr. Raymond Bruce Henthorn as an expert in this case on the standard of care. Dr. Henthorn was deposed during discovery on November 21, 1994. His deposition was considered by the circuit court during the summary judgment proceeding. The circuit court interpreted Dr. Henthorn’s testimony to mean that the defendant met the standard of care in this case. Therefore, the plaintiff had no expert.11 We are not convinced that the circuit court’s finding is correct. Dr. Henthom was *122questioned at length regarding two issues involving plaintiffs fall on May 12:(1) Did the defendant violate the standard of care when the plaintiff fell out of bed?; and (2) Did the defendant violate the standard of care in not timely diagnosing the injuries plaintiff may have sustained in falling out of bed?

With regard to whether the defendant violated the standard of care when the plaintiff fell out of bed, Dr. Henthorn was questioned in detail. The record is clear that Dr. Hent-horn testified regarding the hospital’s standard of care as the same relates to the safety of its patients. Dr. Henthorn specifically stated, with respect to the May 12 incident, that “Hospitals have responsibilities .to their patients, side rails, vigilance, whatever the case may be.” Dr. Henthorn opined that “anytime a patient injures themself in the hospital by either falling out of bed or something of that regard ... the hospital is at fault.” Moreover, Dr. Henthorn testified that the hospital could have prevented Mr. McGraw’s injuries by making sure the side rails were up.

The testimony of Dr. Henthorn indicates that he opined that the standard of care in this case, with respect to the May 12 incident, was that of pulling up the side rails on the plaintiffs bed. Dr. Henthorn opined that the defendant violated this standard. The circuit court, however, erroneously found that Dr. Henthorn opined that the defendant met the standard of care in this case. The circuit court reached this unsupported con-elusion based upon Dr. Henthorn’s testimony regarding the limited issue of the timeliness of diagnosing injuries plaintiff may have sustained in the fall from his bed.12

IV.

CONCLUSION

The facts surrounding the plaintiffs fall from his bed on May 12, and being dropped on May 21, are susceptible to a reasonable standard of care that can be determined, without an expert, by the jury. However, consistent with W.Va.Code § 55-7B-7, a violation of standard of care shall be established in medical professional liability cases by testimony of an expert witness if required by the court. Based upon the current record, the trial judge required an expert for both incidents, though no evidence was proffered which revealed complex management issues involving either incident. We believe evidence of complex management issues was necessary for both issues, in order to justify requiring expert testimony by the plaintiff.

Notwithstanding the lack of evidence of complex management issues in this case, plaintiff produced an expert in Dr. Henthorn, who clearly testified that defendant violated the standard of care it owed to plaintiff as a result of plaintiff’s May 12 fall. Dr. Hent-horn has determined a standard of care for the May 12 incident and opined that the defendant violated that standard. Therefore, the circuit court was cléarly wrong in ruling *123that the plaintiff did not have an expert on the standard of care, with respect to the May 12 incident. As to the May 21 incident, the trial court may find at a pretrial hearing that expert testimony is necessary on this incident, should the defendant proffer satisfactory evidence that this incident involved complex management issues.

Therefore, we hold that the circuit court erred in granting defendant summary judgment on the grounds that plaintiff had no medical expert to show the defendant violated the standard of care. This case is reversed and remanded for a determination by the trial court consistent with this opinion.

Reversed and Remanded.

MAYNARD, Justice,

dissenting:

I respectfully dissent because I disagree with the majority’s conclusion that the facts surrounding the alleged negligence presented in this ease are susceptible to a reasonable standard of care that can be determined by the jury without an expert.

As noted in Syllabus Point 5 of the majority opinion, “[i]t is the general rule that in medical malpractice eases negligence or want of professional skill can be proved only by expert witnesses.” Of course, there is an exception to every rule and the exception to this rule is known as the “common knowledge” exception, which is duly noted in Syllabus Point 6 of the majority opinion. Although the common knowledge exception was originally crafted to be used only “in rare cases,” Totten v. Adongay, 175 W.Va. 634, 639, 337 S.E.2d 2, 7 (1985), the majority here expands it to ridiculous proportions.

While the appellant apparently relied on three incidents of alleged negligence in bringing his complaint, it appears the only incident which suggested a fall and which merited consideration by the appellant’s expert was the finding of the appellant on the floor at 3:00 a.m. on May 12, 1991. In concluding that the common knowledge exception applies to this incident, the majority relies on several hospital fall cases from other jurisdictions and the rationale used by these jurisdictions as it was articulated by the Wisconsin Supreme Court. However, the majority failed to focus on the words of our common knowledge exception as the exception is stated in Totten. It is clear that there are only two situations in which the common knowledge exception applies. These situations are “where lack of care or want of skill is so gross, so as to be apparent, or the alleged breach relates to noncomplex matters of diagnosis and treatment within the understanding of lay jurors by resort to common knowledge and experience!)]” Syllabus Point 4, Totten, supra. I believe that neither situation was present in this case. Instead, expert testimony was necessary here to demonstrate that there was a failure on the part of St. Joseph’s Hospital to properly observe and restrain the appellant in order to prevent him from falling out of bed. Certainly, the proper procedure for evaluating a patient’s susceptibility to falling in the absence of restraints and in light of the patient’s present medical condition, medical history, degree of medication, etc., is an issue of medical management to be established by expert testimony. This is not something that lay jurors would immediately understand, based on common knowledge and experience.

In Waatti v. Marquette General Hospital, Inc., 122 Mich.App. 44, 329 N.W.2d 526 (1982) the court held that expert testimony was necessary to establish whether a seizure patient required constant medical attention or restraint in order to prevent a fall. The court stated:

Plaintiffs next assert that expert testimony was not required because only issues of ordinary negligence were presented. They claim that to leave a seizure patient unattended with the hospital bed’s side rails down is so obviously negligent as to present issues cognizable by an ordinary layman. We disagree. Whether a seizure patient requires constant medical attendance or restraints is an issue of medical management to be established by expert testimony.

Id., 329 N.W.2d at 528. (Citations omitted). Similarly, in Murphy v. Schwartz, 739 S.W.2d 777 (Tenn.App.1986), a husband and wife filed a medical malpractice suit alleging, in part, that the wife fell from an emergency *124room cot because hospital physicians failed to properly attend to her. No expert testimony was offered by the plaintiffs. The trial court granted summary judgment in favor of the health care providers and the appellate court affirmed, noting that:

There is a “common knowledge” exception to the general rule, that is, the medical negligence is as blatant as a “fly floating in a bowl of buttermilk” so that all mankind knows that such things are not done absent negligence_ We see little difference in matters of medical malpractice between the question of the applicability of res ipsa at the close of a plaintiffs proof and the common knowledge exception to the expert medical proof requirement in a summary judgment before trial. It seems to us that the inference of negligence obtained by the application of res ipsa which creates a jury issue and the common knowledge exception to the requirement of expert testimony in summary judgments are just about Siamese twins in that both require that it be evident to all, that is judicial notice be taken, that the injury complained of does not ordinarily occur absent negligence.

Id., 739 S.W.2d at 778-79 (Citation omitted). In this case, I would adopt the “fly floating in a bowl of buttermilk”1 test and thereby properly limit the common knowledge exception to the expert witness requirement to those rare cases in which it belongs.

Also, I disagree with the majority’s characterization that Dr. Henthorn “opined that the standard of care in this case, with respect to the May 12 incident, was that of pulling up the side rails on the plaintiffs bed,” and that the hospital violated this standard. A review of the record reveals that Dr. Henthorn testified that, based upon the records, there was no reason to suspect, prior to 3:00 a.m. on May 12,1991, that the appellant was going to fall or be found lying in the floor in the middle of the night, and there was no reason for the nurses to have taken any extraordinary measures in the additional monitoring or restraining of the appellant. As noted in ate 12 of the majority opinion, when asked if, in his estimation, the hospital met the standard of care, Dr. Henthorn replied “yes”. Therefore, I agree with the circuit court that Dr. Henthorn testified that it was his opinion that the hospital met the applicable standard of care.

For the reasons stated above, I believe that the circuit court was correct in granting summary judgment on behalf of St. Joseph’s Hospital. This is clearly a ease in which expert testimony was needed, but no such testimony was, in effect, provided. Therefore, the appellant failed to produce the evidence essential to his case. In Jividen v. Law, 194 W.Va. 705, 712-13, 461 S.E.2d 451, 458-59 (1995) this Court stated:

In Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), we clarified our view of summary disposition, in part, to disabuse litigants and circuit courts of the erroneous notion that West Rule of Civil Procedure 56 had ceased to exist. In that same vein, we recently stated that “[t]o the extent that our prior cases implicitly have communicated a message that Rule 56 is not to be used, that message, hereby, is modified.” Williams v. Precision Coil, Inc., 194 W.Va. 52, 58, 459 S.E.2d 329, 335 (1995). (emphasis added). Rule 56 was incorporated into West Virginia civil practice for good reason, and circuit courts should not hesitate to summarily dispose of litigation where the requirements of the Rule are satisfied. (Footnote omitted).

Because the appellant failed to produce an expert witness to testify that St. Joseph’s Hospital failed to conform to the applicable standard of care, I believe there was no genuine issue of fact which warranted a trial on the merits. Consequently, I believe the circuit court did not err in granting the appellee’s motion for summary judgment.

Finally, I note that this ease is governed by the Medical Professional Liability Act, W.Va.Code § 55-7B-1 et seq. W.Va.Code § 55-7B-1 (1986) provides in part:

*125The Legislature hereby finds and declares that the citizens of this state are entitled to the best medical care and facilities available and that health care providers offer an essential and basic service which requires that the public policy of this state encourage and facilitate the provision of such service to our citizens ...

That it is the duty and responsibility of the Legislature to balance the rights of our individual citizens to adequate and reasonable compensation with the broad public interest in the provision of services by qualified health care providers who can themselves obtain the protection of reasonably priced and extensive liability coverage;

That in recent years, the cost of insurance coverage has risen dramatically while the nature. and extent of coverage has diminished, leaving the health care providers and the injured without the full benefit of professional liability insurance coverage[.] (Emphasis added).

This Court frustrates the Legislature’s policy in medical malpractice actions when it strains to allow such actions to go forward after they were properly disposed of at the circuit court level by a grant of summary judgment. Because I believe this to be the ease here, I dissent.

David Newbern, Justice.

This is a medical malpractice case decided by summary judgment in favor of defendant, Doyne Dodd, M.D., the appellee. The action was brought by the appellants, Dollie and Duane Courteau, on behalf of their son and ward, Timothy Courteau. Timothy, at age twenty, suffered a broken neck in a diving accident. While he was a patient at North Little Rock Memorial Hospital, a breathing tube which had been placed through his nostril into his trachea became dislodged. Breathing was severely hampered, blood gases elevated, and he suffered a heart attack and massive brain damage. Suit was brought on his behalf by the appellants, who are Timothy’s parents and guardians, against three physicians and an insurance company. The allegation against Dr. Dodd, a radiologist, was that he failed to take immediate action to notify others involved in treating Timothy that an X-ray showed the tube was not present where it should have been. The trial court entered a final judgment as to Dr. Dodd, finding no reason to delay. Ark. R. Civ. P. 54(b). The Courteaus argue the remaining fact issue is whether the doctor used the proper means of communication. They assert it is a question a juror could answer absent expert testimony. We agree, however, with the court’s conclusion that, absent the prospect of expect medical testimony showing Dr. Dodd to have been negligent, there was no remaining fact issue, and summary judgment was appropriate.

Facts revealed in the pleadings and affidavits supporting and responding to the summary judgment motion are not disputed. Timothy Courteau was admitted to the hospital on July 3, 1986. Following surgery necessitated by his spinal injury he was placed on a.respirator, and the tube was put in place to keep an air passageway open to his lung. The nursing notes beginning on the night of July 5, 1986, showed the patient was agitated and was fighting the ventilator and shaking his head from side to side.

A nurse checked between 6:00 and 7:30 a.m. on the morning of July 6 and found there was a whistling sound around the tube and the patient was unresponsive. At about that same time, a respiratory therapist reported the blood gases were at readings of around 90, and they should have been around 30. The therapist caused a call to be made to Dr. Marvin, the treating physician, who then ordered that the tube be repositioned. Dr. Duke tried unsuccessfully to get the tube back into the lung, using both the nostril and the mouth, but instead the tube went into the esophagus and stomach. Timothy’s inability to breathe resulted in the brain damage and a heart attack which occurred at 8:59 a.m.

Requisitions had been made for daily chest X-rays. The requisition dated July 3 for a July 4 X-ray made no reference to the tube. Dr. McAdoo, who read the July 4 film, stated in his notes “[t]here is an endotracheal tube in place.” The requisition dated July 4 for the July 5 X-ray again made no mention of the tube, and Dr. McAdoo’s notes did not mention the tube. The requisition dated July 5 for the July 6 X-ray had two notations: “CHEST-PORTABLE RECUMBENT” and “INTUBATION.”

Dr. Dodd’s affidavit accompanying the motion for summary judgment stated that he read the film between 7:30 and 8:30 the morning of July 6. The Courteaus point out that in his earlier deposition Dr. Dodd said he read the film between 7:15 and 8:30. The X-ray had been taken at 6:35 that morning. He noted the absence of the tube, stating, “the endotracheal tube is not visualized and may have been removed.” His dictated notes were transcribed and printed at 10:37 that morning. He took no other action to notify anyone of the finding that the tube was not in place. In his affidavit Dr. Dodd described the X-ray requisition as “routine” with nothing to suggest urgency with respect to his report. He also noted there was nothing unusual about the disappearance of a tube or other appliance which may be removed as a patient’s condition improves.

Also accompanying the motion for summary judgment were affidavits of two board certified radiologists, each of whom stated he was familiar with the standard of care for radiologists practicing in the Little Rock and North Little Rock community in 1986. Each stated that he had reviewed the undisputed facts and concluded that Dr. Dodd promptly read the X-ray in question and interpreted it in a manner consistent with the standard of care for a radiologist in the community in 1986. Each stated:

It is my professional medical opinion that Dr. Dodd did not negligently fail to bring his endotracheal tube finding regarding Tim Courteau’s July 6, 1986, morning chest x-ray to the attention of the treating physician, the intensive care unit, the emergency room, or hospital administration, as alleged in . . . plaintiffs’ . . . Complaint. Dr. Dodd dictated a report which indicated that “the endotracheal tube is not visualized and may have been removed.” No request for a STAT reading was communicated to Dr. Dodd. It was within the standard of care for a radiologist who read a routine chest x-ray on a patient who had been intubated in the intensive care unit for several days to dictate his findings that no tube appeared in the x-ray. This is true even though the requisition indicated that the patient was intubated, because the computer-generated requisitions often indicated the presence of tubes or appliances which had been removed as the patient’s condition improved.

In response to the motion for summary judgment, the Courteaus presented, among other things, excerpts from a number of depositions concerning the direct care which was being given in or about the patient’s hospital room. The only items, other than the X-ray films, directly related to Dr. Dodd were an excerpt from a deposition given by an internist, Dr. Frank Logan Brown, Jr., and an affidavit from a respiratory therapist, John Govar.

Dr. Brown expressed no opinion about the standard of care and whether Dr. Dodd’s actions were within the standard. He stated he did not understand why Dr. Dodd had not called the intensive care unit where the patient was hospitalized when he noticed the tube was not present, given the “intubation” notation on the requisition.

Mr. Govar’s affidavit stated that he was a certified respiratory therapist with twelve years experience, currently serving as Director of Respiratory Care at Hillside Hospital in Pulaski, Tennessee. The affidavit contained nothing about Mr. Govar’s education or training for his position. There was nothing showing the size or nature of the community in which he was working or any community in which he had worked. There was nothing to show any knowledge of radiology or X-ray reading and reporting procedures. He stated that in his experience “a chest x-ray requisition reflecting the word ‘intubation’ means that a chest x-ray is being requested for the purpose of determining tube placement.” He stated his opinion that the absence of the tube shown in the July 6 film should have been reported immediately.

After finding that a genuine issue of material fact remained as to the question of causation, the trial court’s order stated:

However, it is the Court’s opinion that in this case the Plaintiffs would have to have expert medical testimony and opinion that Dr. Dodd acted below the standard of care for radiologists in 1986 in North Little Rock, Arkansas, or a similar community, and that Plaintiffs have not listed a medical physician who would so testify, and, therefore, there is not a genuine issue of material fact concerning Dr. Dodd’s alleged negligence.

In Prather v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987), we reversed a summary judgment because we found ample medical expert testimony to raise a question of fact as to a physician’s negligence. We stated the standard rule for review of a summary judgment. The burden is on the moving party to demonstrate that there is no genuine issue of fact for trial. We view the evidence most favorably to the party against whom relief is sought. Citing Clemons v. First National Bank, 286 Ark. 290, 692 S.W.2d 222 (1985), we said summary judgment is not proper where the evidence is not in dispute but has aspects from which inconsistent hypotheses might reasonably be drawn.

The malpractice statute, Ark. Code Ann. § 16-114-206(A) (1987), provides:

In any action for medical injury, the plaintiff shall have the burden of proving:

(1) The degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality;

(2) That the medical care provider failed to act in accordance with that standard; and

(3) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.

The question here is whether, once Dr. Dodd presented medical expert opinion testimony to the effect that he was not negligent, the Courteaus presented sufficient evidence to pose a question of fact on that issue. Further refined, the question becomes whether the affidavit of Mr. Govar expressing his opinion that Dr. Dodd was negligent was sufficient to rebut Dr. Dodd’s evidence and thus raise a fact question.

To the extent the trial court’s judgment could be interpreted as stating that the Courteaus were required to find a radiologist to testify against Dr. Dodd and to rebut the affidavits of his fellow radiologists, we disagree. Arkansas Code Ann. § 16-114-207(1) (1987) provides that A.R.E. 702 governs the qualifications of expert witnesses in an action for medical injury. Rule 702 is not so strict. We have held that if there is a reasonable basis for saying a witness knows more of the subject at hand than a person of ordinary knowledge, his evidence is admissible. Dildine v. Clark Equip. Co., 282 Ark. 130, 666 S.W.2d 692 (1984). By way of obiter dictum in Haney v. DeSandre, 286 Ark. 258, 692 S.W.2d 214 (1985), we stated that:

the statute does not expressly state that every plaintiff in a malpractice case must find a doctor willing to testify against a fellow doctor. Such a requirement might subject the validity of the statute to serious doubt, as being special or class legislation. ^

Reserving the question whether educational background is a necessary component of the qualifications of a person presented as a medical expert, Mr. Govar’s affidavit makes it pretty clear that he is a person who may have more knowledge than the ordinary person would have about respiratory therapy. It states:

[t]he respiratory therapy issues in this case relating to the proper and standard care to be provided to an intubated patient in the Intensive Care Unit are common to any hospital operating such a unit. The issues involve the basic components of airway management of an intubated patient in the Intensive Care Unit.

It then states that “intubation” noted on a requisition means a chest X-ray is being requested to determine tube placement, and that the findings from the 6:35 a.m. film were of major significance to the patient’s care and should have been immediately reported. Had the issue in this case been one of the standard of care to be exercised in administering respiratory therapy, and had Mr. Govar been able to qualify as an expert in that field, his testimony might have been sufficient to present a fact question. The subject at hand here, however, was the standard of care a radiologist must follow in interpreting an X-ray requisition.

The question we face is whether Mr. Govar was qualified to express an opinion about how Dr. Dodd should have reacted to the July 6 X-ray, given the instructions in the July 5 requisition. The affidavit offers nothing to sustain the Courteaus’ burden of proof which, in the words of § 16-114-206(A)(1), includes “[t]he degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider . . . engaged in the same type of . . . specialty in the locality . . . or . . . similar locality.” Mr. Govar’s affidavit contained nothing about his having knowledge as to how a radiologist in a community like North Little Rock should have interpreted the July 5 requisition. His statement that the “respiratory care issues” are common to any hospital operating an intensive care unit states no basis for his evaluation of the conduct of a radiologist.

The Corteaus cite Phillips v. Good Samaritan Hosp., 65 Ohio App.2d 112, 416 N.E.2d 646 (1979). There a radiologist determined that the patient had a broken arm, although the physician who had examined her had concluded there was no break. The radiologist dictated his findings into a machine, but they were not communicated to the treating physicians. The Courteaus urge upon us the language from that case to the effect that the “mode” of communication is an area in which an ordinary juror could ascertain whether the radiologist breached a duty to the patient. We find, however, that the court carefully and clearly distinguished the “urgency” of the communication which the court concluded depended on medical facts as to which expert testimony would be required.

The Courteaus also cite Jenoff v. Gleason, 215 N.J. Super. 349, 521 A.2d 1323 (App. Div. 1987), where the mode of communication by a radiologist resulted in delay in informing a patient and her physician about a lung tumor until it had grown and spread. The information was not placed in the hands of Ms. Jenoffs doctors but was attached to her hospital records after she had been discharged. It was only discovered by a nurse who was reviewing her record on behalf of a workers’ compensation carrier some months later. The trial court dismissed the claim against the radiologist at the conclusion of the plaintiffs evidence. A physician testified that an unusual finding by a radiologist would be communicated to the treating physician and where, as in the case of Ms. Jenoff the X-ray was being taken to assess her general suitability for surgery, to the surgeon. The appellate court reversed on the ground that the evidence was sufficient to take the case to the jury. By way of obiter dictum, the court noted that “modes of communication are not so peculiarly within the expertise and knowledge of the medical profession as to necessitate expert testimony.”

The Jenoff case is easily distinguishable from the one before us now. We agree that the discovery of a lung tumor by a radiologist is clearly an item to be communicated to a treating physician and patient, and a layperson could determine that failure to communicate in those circumstances could be characterized as negligence. In this case, however, there was no failure to communicate. Unlike the Jenoff case, the jurors here would have had the task of interpreting the term “intubation” and determining the action, if any, it required under the community standard made applicable by the statute.

In Prater v. St. Paul Ins. Co., supra, we wrote:

Expert testimony is required when the asserted negligence does not lie within the jury’s comprehension; when the applicable standard of care is not just a matter of common knowledge; and when the jury must have the assistance of expert witnesses to decide the issue of negligence. Sexton v. St. Paul Fire & Marine Insurance Co., 275 Ark. 361, 631 S.W.2d 270 (1982); David v. Kemp, 252 Ark. 925, 481 S.W.2d 712 (1972).

Again, the question presented has to do with the urgency, if any, suggested by the X-ray requisition and the resulting film, and we cannot say the trial court was wrong in requiring expert testimony on that issue and in holding that Mr. Govar’s affidavit was insufficient and the “question” raised in the deposition testimony of a physician presented no genuine issue of material fact.

Affirmed.

John I. Purtle, Justice,

dissenting. We should abandon the archaic rule that dictates that before an injured person may proceed against a physician, he must have another physician who is willing to testify that the treating physician did not use the degree of care required. One of the basic instructions given to the jury is: “In considering the evidence in this case you are not required to set aside your common knowledge, but you have a right to consider all evidence in the light of your own observations and experiences in the affairs of life.” AMI Civil 3rd 102. If a jury is urged not to set aside its common knowledge, then certainly the admonition should apply with equal force to the courts. Our court-made rule requiring a physician to testify against another in support of a plaintiff’s claim is, at the very least, obsolete. In view of the existence of special legislation protecting doctors from certain risks, we ought to subject physicians to all other normal risks encountered by other professions.

The majority opinion is well-written and contains all the facts necessary to understand this case. My disagreement is not so much with the majority as it is with the practice which has grown up protecting the medical profession from liability for negligence. For example, in the present case two board-certified radiologists testified, relative to the motion for summary judgment, that the appellee, also a board-certified radiologist, did things in conformity with the standards prevailing in the community where the hospital is located. It would surprise me if all other board-certified radiologists in the city would not make the same statement. However, the ultimate decision in this case should not be left to a radiologist.

Timothy Courteau was in grave condition when he was placed in the intensive care unit at Memorial Hospital on July 3, 1986. It was deemed necessary to insert a tube into his lungs, through the trachea, to enable him to receive sufficient oxygen. He was then placed on a ventilator to assist him in breathing. One of the routine orders was that Tim would have a daily X-ray in the morning for the purpose, among other things, of determining whether the tube was in place. When the tube is properly inserted, the condition is referred to as “intubation.” When the tube is not in place the condition is called “extubation.”

The X-rays were read each morning between 7:30 a.m. and 8:00 a.m. Until July 6, 1986, the early morning X-rays clearly revealed that Tim had the breathing tube in place. The requisitions for the July 6 early morning X-ray required a reading for intubation. The early morning X-ray of July 6,1986, was read by Dr. Dodd between 7:15 a.m. and 8:30 a.m. The remarkable thing about this X-ray is that it is obvious, even from the photo copy in appellant’s briefs, that the tube is missing from his throat. Dr. Dodd’s report alluded to the missing tube by stating that it “may have been removed.” One of Dr. Dodd’s partners, Dr. Dalrymple, stated that ICU X-rays at the North Little Rock Memorial Hospital were to be given priority reading and were not to be handled as “routine” X-rays. However, the reading of this X-ray by Dr. Dodd at about 8:00 a.m. was not received at Tim’s station until 10:37 a.m. In the meantime, Tim had suffered a cardiac arrest.

It seems to me that it does not take the testimony of another radiologist to explain that the breathing tube had been dislodged from the patient’s thoratic area prior to the taking of the X-ray on July 6, 1986. Compared with the X-rays of July 4 and 5, it is obvious to the normal eye that the tube is not in place. Knowing that the tube was not in place, the doctor nevertheless handled the situation as a matter of routine. While this routine was taking its course, Timothy Courteau was in a life-threatening situation and indeed almost died. He deserved more than routine care under these circumstances.

Even before the report of the X-rays came back to the patient’s chart, the duty nurses had discovered he was extubated. In the attempt to replace the tube it was inserted through the esophagus into the stomach. Certainly this series of mishaps was not planned by the institution or any of its employees. I doubt that any employee or staff member of the hospital, from attending physician to janitor, would have failed to recognize that something needed to be done when it was discovered that the tube was not in place. The requisition for the X-ray stated that one purpose was to determine whether the patient was intubated. It does not take expert medical testimony to recognize that this fact should be immediately called to the attention of those entrusted with preserving the life of the patient. This was not done. Rather, this most significant and alarming fact was not called to the attention of anyone except through routine channels.

It is quite clear to me that the evidence in this case reveals certain aspects from which inconsistent hypotheses might reasonably be drawn. In other words, reasonable men might differ on the interpretation of the evidence. In the case of Prater v. St. Paul Fire and Marine Insurance Co., 293 Ark. 547, 739 S.W.2d 676 (1987), this court stated:

Expert testimony is required when the asserted negligence does not lie within the jury’s comprehension; when the applicable standard of care is not a matter of common knowledge; and when the jury must have the assistance of expert witnesses to decide the issue of negligence.

The jury did not need the testimony of an expert witness to interpret the facts in this case. The question boils down to whether Dr. Dodd was negligent in failing to communicate the extubated condition of Timothy Courteau. Aside from the fact that it is most difficult to find a physician who is willing to testify against another physician, it is clear from the facts in this case that the jury could have made a determination on the question of the appellee’s negligence. See Haney v. DeSandre, 286 Ark. 258, 692 S.W.2d 214 (1985).

Even though we may not have decided this precise factual question before, we have decided the same issue many times. I have cited two cases and will point to several others from other jurisdictions. The finding of a radiologist concerning X-rays has been held not to be a matter so peculiarily within the expertise and knowledge of the medical profession as to require expert testimony. Phillips v. Good Samaritan Hospital, 416 N.E.2d 646 (Ohio App. 1919); Jenoff v. Gleason, 521 A.2d 1323 (NJ. Super. A.D. 1987); Thomas v. Corso, 288 A.2d 379 (Md. 1972); Baldwin v. Knight, 569 S.W.2d 450 (Tenn. 1978); Wilkinson v. Vesey, 295 A. 2d 676 (R.I. 1972); Steele v. Woods, 327 S.W.2d 187 (Mo. 1959); and Prater v. St. Paul, supra. When a patient is in peril of his life, it does him very little good if the examining doctor has discovered his condition unless the physician takes measures and informs the patient, or those responsible for his care, of that fact.

The director of respiratory therapy at the hospital testified that the procedures involved in this case are common to any hospital furnishing such services. The director had twelve years’ experience in respiratory therapy. He was familiar with the X-ray procedures normally employed to determine the proper placement of breathing tubes. He stated that the purpose of a requisition requesting an X-ray to be read for intubation was to see whether the breathing tube was still in place. It was obvious to him from'observing the X-ray of July 6 that the tube was not in place.

An attending physician who found Timothy in a lifethreatenting situation obviously recognized the need for immediate attention and attempted to replace the respiratory tube. However, she mistakenly inserted the tube in his esophagus, thereby aggravating the patient’s already precarious situation.

The holding in Phillips v. Good Samaritan Hospital, supra, was that:

Modes of communication. . . are not so peculiarily within the expertise and knowledge of the medical profession so as to necessitate expert testimony. The manner of communication, unlike urgency and content that depend upon medical facts, is not so complex and technical that is should escape the comprehension of a layman jury. In so holding, we merely apply the general principle that a party need not “submit expert testimony in order to have the case submitted to the jury, where [a] violation of the defendant’s duty to the patient is otherwise made to appear.” (Citation omitted.) Once the need for a communication, and the necessary information that it should contain, have been established, the trier of fact should be able to pass on the issue of adequacy of the communication bearing in mind the facts available to the parties at the time the communication was made.

It seems to me that common knowledge is all that is needed to determine that the X-rays of July 6, taken at 6:35 and read by Dr. Dodd about an hour later, clearly demanded that the extubation required immediate attention rather than the normal routine. Had the X-rays been read in the ICU unit when Dr. Duke or Dr. Bates arrived, the cardiac arrest most likely would not have occurred. Dr. Bates stated that the available evidence indicated that Timothy Courteau was in a life-threatening situation at 7:15 a.m., about an hour after the X-ray had been taken.

If we must continue to employ the archaic rule requiring one physician to testify against another, it seems to me that Dr. Bates’ testimony is factual enough to demand that the matter be submitted to a jury for determination. Common sense requires that a jury be allowed to decide the issue of negligence and proximate cause in medical malpractice cases as well as in all other cases.

Hill, J.

This is a legal malpractice action. The trial court found for defendants, H. Vaughn Griffin, Jr. and Griffin & Griffin, Ltd., and entered judgment on their behalf. Plaintiff, J. A. Russo Paving, Inc., appealed. We reverse.

Sometime during the 1930’s Joseph Russo established a paving business in Rutland, Vermont. In 1975, Mr. Russo decided to turn the business over to his two sons, Anthony (Tony) and Francis (Frank). They approached defendant Griffin, a lawyer in the Rut-land area, to help them with the process of incorporation. As their attorney, defendant Griffin drew up the corporate charter, filed it with the Secretary of State and arranged the necessary transfer of assets. Between 1975 and 1978 the corporation held its annual meetings at Mr. Griffin’s office.

In early 1978, Frank entertained thoughts of purchasing a laundromat in Rutland, and he entered into discussions with his brother concerning the sale of his interest in the corporation. The father, who was not happy with the proposed arrangements, eventually got involved in the negotiations, which culminated in a meeting at Mr. Griffin’s office.

According to defendant Griffin, the main purpose of the meeting, and the documents he prepared pursuant thereto, was to protect Frank. In this regard, a $6,000 promissory note from the corporation to Frank Russo was personally guaranteed by Tony Russo and his wife, and it was secured by a chattel mortgage. In *22return, Frank resigned as president and transferred his stock to the corporation.

At no time during the meeting did defendant Griffin inform the corporation or Tony Russo, the sole remaining shareholder, of the desirability of obtaining a covenant not to compete or explain the implications thereof. Three months after the stock transfer, Frank went back into the paving business in Rutland in direct competition with the plaintiff corporation. A properly drafted noncompetition covenant would have prevented this from occurring.

At trial, plaintiff introduced two expert witnesses, both well-respected practicing attorneys from the Burlington area, who testified that defendant Griffin’s failure to advise the corporation to exact a covenant not to compete deviated from the standard of care required of attorneys practicing in Vermont at that time. Defendants introduced two similarly qualified Rutland attorneys who testified that defendant Griffin’s conduct comported with the standard of care then expected of Rutland attorneys.

The question for determination was clearly whether defendant Griffin’s conduct violated the attorney standard of care as it existed at the time of the alleged breach. In answering this question, the trial court focused on the long-standing professional relationship between defendant Griffin and the Russo family and the fact that this was not an arms-length transaction. It did not, however, find these facts to be dispositive. The court ultimately chose to accept the testimony of defendants’, rather than plaintiff’s, expert witnesses on the premise that “those attorneys whose practice primarily was conducted in the Rutland area prior to and during 1978 are more familiar with the standard of care then required of lawyers.”

Defendants claim that the trial court was more concerned with the time frame of the alleged act of malpractice then the locale in which it occurred. We cannot agree. In ruling for the defendants, the court found the relevant standard of care to be limited to what a careful and prudent practitioner in the Rutland area would do under the circumstances. The court concluded:

The standard of care in the Rutland area in 1978 required of an attorney did not require him to suggest or recommend to a purchasing client that a noncompete agreement be obtained from a seller who is a relative and who has been a *23business associate for several years, the transaction not being one at arms length. (Emphasis added).

In Hughes v. Klein, 139 Vt. 232, 233, 427 A.2d 353, 354 (1981), this Court held that the standard of care within the legal profession required lawyers to exercise “the customary skill and knowledge which normally prevails at the time and place.” We are now asked to reexamine the underlying rationale and continued vitality of the so-called locality rule.

The locality rule is an exclusive product of the United States. See Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187, 193, 349 A.2d 245, 248 (1975). It was first applied to the medical profession approximately a century ago when there existed a great disparity between standards of practice in large urban centers and remote rural areas. Id. at 193, 349 A.2d at 249. “The rule was unquestionably developed to protect the rural and small town practitioner, who was presumed to be less adequately informed and equipped than his big city brother.” Id. at 193, 349 A.2d at 248.

The shortcomings of the locality rule are well recognized. It immunizes persons who are sole practitioners in their community from malpractice liability and it promotes a “conspiracy of silence” in the plaintiffs’ locality which, in many cases, effectively precludes plaintiffs from retaining qualified experts to testify on their behalf. Id. at 193-94, 349 A.2d at 249 (citing Waltz, The Rise and Gradual Fall of the Locality Rule In Medical Malpractice Litigation, 18 DePaul L. Rev. 408, 411 (1969); Note, Medical Malpractice — Michigan Abandons “Locality Rule” with Regard to Specialists, 40 Fordham L. Rev. 435, 438 (1971)). Recent developments in technology and the trend toward standardization have further undermined support for the rule. See Shilkret, supra, 276 Md. at 197, 349 A.2d at 250.

According to defendants, the reasoning of the courts which have rejected the locality rule in medical malpractice decisions is inapposite to legal malpractice. We disagree.

The ability of the practitioner and the minimum knowledge required should not vary with geography. The rural practitioner should not be less careful, less able or less skillful than the urban attorney. The fact that a lower degree of care or less able practice may be prevalent in a particular local community should not dictate the standard of care.

*24Mallen & Levit, Legal Malpractice § 254, at 334 (2d ed. 1981). Defendants correctly note that “knowledge of local practices, rules, or customs may be determinative of, and essential to, the exercise of adequate care and skill.” Id. To argue this fact in support of continued application of the locality rule, however, is to confuse “the degree of ‘skill and knowledge’ and the relevance of local factors which constitute the knowledge required by the standard of care.” Id. at 337. Although attorneys throughout this state may be required to familiarize themselves with local practices, rules or customs peculiar to their area, the crucial inquiry for malpractice purposes turns not on the substance of the underlying practice, rule, or custom but on whether a reasonable and prudent attorney can be expected to know of its existence and practical applications.

In selecting a territorial limitation on the standard of care, we believe that the most logical is that of the state. See Mallen & Levit, supra, at 336; see also Restatement (Second) of Torts § 299A comment g (1965) (allowance for variations in type of community or degree of skill and knowledge possessed by practitioners therein has seldom been made in legal profession as such variations either do not exist or are not worthy of recognition). In Vermont, the rules governing the practice of law do not vary from community to community but are the same throughout the state. Moreover, in order to practice law in Vermont attorneys must successfully complete the requirements for admission established by this Court and administered by the Vermont Board of Bar Examiners. Among these prerequisites is the requirement that all candidates for admission complete a study of law in the office of a judge or practicing attorney in this state.

The relevant geographic area then is not the community in which the attorney’s office is located or the nation as a whole, but the jurisdiction in which the attorney is licensed to practice. Accordingly, we hold that the appropriate standard of care to which a lawyer is held in the performance of professional services is “that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction.” Cook, Flanagan & Berst v. Clausing, 73 Wash. 2d 393, 395, 438 P.2d 865, 867 (1968); see also Ramp v. St. Paul Fire & Marine Insurance Co., 254 So. 2d 79, 82 (La. App. 1971) (attorney liable for failure to exercise that degree of care, skill and diligence which is commonly pos*25sessed and exercised by practicing attorneys in his or her jurisdiction); Hodges v. Carter, 239 N.C. 517, 520, 80 S.E.2d 144, 146 (1954) (attorney not liable for following service of process custom which had prevailed in state for two decades and was followed generally by attorneys throughout the state); Feil v. Wishek, 193 N.W.2d 218, 225 (N.D. 1971) (attorney liable for failure “to exercise that degree of care commonly possessed and exercised by other reasonable, careful and prudent lawyers of this State”).

Unlike the medical profession, the legal profession has not yet established a certification and licensing process which is national in scope. Mallen, supra, § 254, at 337. Nevertheless, “[w]hen certain recognized specialities are involved a national standard may be appropriate.” Id. These “national law” specialities might include federal taxation law, securities law, patent law, and bankruptcy law where the need for uniformity is clearly apparent. Id. at 338. Regardless of whether a state or national standard is applied, however, our holding points out the need to advise clients as to the limits of one’s professional capabilities and to refer them to specialists in appropriate cases.

In this case, defendant Griffin, in advising a family-held business on how to structure a buy-out and drafting the documents necessary to the transaction, failed to inform his clients of the possible need for, and implications of, a covenant not to compete. Both sides presented expert testimony addressing whether this failure constituted attorney malpractice. In answering this question, the trial court erroneously applied the locality rule in defining the applicable standard of care. This ruling clearly prejudiced the plaintiffs as the court chose to accept the testimony of defendants’, rather than plaintiff’s, expert witnesses on the rationale that they were from the Rutland area, and therefore were more familiar with the applicable standard to care. Accordingly, the decision of the superior court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

Hayes, J.,

concurring in part and dissenting in part. I agree with the majority that the correct standard to which an attorney should be held in the performance of professional services is not the standard of his or her locality. If there are only two lawyers in *26a small town, and both are incompetent, they cannot set a standard of inferiority for a third who comes to town.

I disagree with the Court’s holding that the applicable standard of care should be a state standard. Doctors in Vermont are required to adhere to standards based upon the medical profession generally. Lawyers should be subject to a similar standard of care based on their profession.

The scope of an attorney’s obligation to his or her client should not vary with geography. The law schools of today are truly national in legal training. Vermont and almost all other states give a multistate bar examination. Much of our continuing legal education is national in scope. Why then must candidates for admission to the Vermont bar clear a multistate hurdle, and be required to meet only a state standard for performance once admitted?

I would require that the standard of care for Vermont lawyers be based upon the legal profession generally, and I would.reject a state or local standard.

We are members of a profession that has not won a full measure of public confidence. To adopt a state standard is to say that what may be considered attorney negligence in New Hampshire may not violate the standard of adequacy of legal services in Vermont. Such a caliper to measure attorney conduct will lower public esteem for the Vermont legal profession and will arouse suspicions in lay circles that we have selected a cemetery in the Green Mountains in which quietly to bury the faults of our legal brothers and sisters.

Wilkins, J.

This appeal principally concerns the propriety of certain evidentiary rulings in the trial of a counterclaim for malpractice filed by Larimore S. Brooks against Irving Fishman, a member of the bar of theXommon wealth. Brooks persuaded the jury that (a) Fishman was negligent in representing Brooks in an action for personal injuries Brooks sustained when a negligently operated motor vehicle collided with the bicycle he was riding; (b) as a result of Fishman’s negligence, Brooks was obliged to settle the personal injury action; and (c) the damages which Brooks should have recovered in that action were substantially greater than the amount of the settlement.

Fishman commenced this action by filing a complaint for declaratory relief against Brooks, who, after the settlement, had notified his health care providers that the case had been settled and they would be paid. Fishman alleged that Brooks had violated the terms of an agreement between them which would have given Fishman, as an additional fee, any amount he saved in negotiating settlements of Brooks’s medical bills. Fishman voluntarily abandoned this claim shortly before Brooks filed his counterclaim. In addition to his malpractice claim, Brooks successfully asserted an abuse of process claim based on Fishman’s commencement of this action. On our own motion, we transferred Fishman’s appeal to this court, and we now affirm the judgment in favor of Brooks.

We need recite the facts only in general terms in order to present the legal issues raised in Fishman’s appeal. On the night of September 25, 1975, Brooks suffered serious injuries when a motor vehicle traveling in the same direction struck him as he rode his bicycle in the breakdown lane of Route Nine in Newton. Brooks wore dark clothing, and his bicycle may have lacked proper light reflectors. Shortly after the accident Brooks retained Fishman to represent him.

*645 The jury would have been warranted in finding various facts bearing on Fishman’s negligence. Fishman had not tried a case of any sort since 1961. His part-time solo practice mainly involved real estate conveyancing. He did not commence suit until sixteen months after the accident and, for no apparent reason, did not obtain service on the driver defendant for more than ten months after filing the complaint, a delay which, by his own admission, interfered with his handling of the case. Fishman made no effort to examine the motor vehicle or to investigate in any detail what the driver had been doing immediately prior to the accident. He engaged in no useful pretrial discovery. Instead, he relied on information the driver’s insurer volunteered. He did not learn, for example, that shortly after the accident the driver had stated that she neither saw Brooks nor the bicycle before her vehicle struck them.

In April, 1978, a Federal District Court judge assigned the case for trial on June fifth. Fishman thereupon consulted an able attorney experienced in personal injury litigation about referring the case to him, but the negotiations failed because Fishman would not agree to an even division of his one-third contingent fee.

In April, 1978, Fishman made a settlement demand of $250,000 on the driver’s insurer. At various times the driver’s insurer made offers of settlement. Fishman did not know what the available insurance coverage was. He told Brooks that only $250,000 was available when, in fact, $1,000,000 was available. Brooks rejected several offers of settlement, although Fishman had recommended that Brooks accept them. Finally, shortly before trial, after Fishman had told Brooks that he could not win if he went to trial, Brooks agreed to settle his personal injury claim for $160,000, knowing that Fishman was not prepared to try the case.

In the trial of this case, the jury answered special questions concerning the malpractice action. They found that Fishman was negligent in his handling of the personal injury action and that Brooks was damaged thereby in the amount of $525,000. The driver’s negligence was 90% and Brooks’s negligence was 10% of the contributing cause of his injuries. The jury also *646 returned a verdict in the amount of $10,000 on Brooks’s abuse of process claim.

The judge entered judgment on the malpractice count by reducing Brooks’s damages ($525,000) to reflect (a) his contributory fault (10% or $52,500), (b) the amount of medical expenses paid from the settlement ($32,000), and (c) the amount Brooks received personally from the settlement ($90,000) and by allowing interest on the balance. No reduction was allowed for Fishman’s counsel fees collected in the earlier action.

An attorney who has not held himself out as a specialist owes his client a duty to exercise the degree of care and skill of the average qualified practitioner. See McLellan v. Fuller, 226 Mass. 374, 377-378 (1917); Caverly v. McOwen, 123 Mass. 574, 578 (1878); Varnum v. Martin, 15 Pick. 440, 442 (1834); Glidden v. Terranova, 12 Mass. App. Ct. 597, 598 (1981); Barry, Legal Malpractice in Massachusetts, 63 Mass. L. Rev. 15, 17 (1978). An attorney who violates this duty is liable to his client for any reasonably foreseeable loss caused by his negligence. See McLellan v. Fuller, supra; Glidden v. Terranova, supra at 600. Thus an attorney is liable for negligently causing a client to settle a claim for an amount below what a properly represented client would have accepted. See, e.g., Edmondson v. Dressman, 469 So. 2d 571, 574 (Ala. 1985); Cook v. Connolly, 366 N.W.2d 287, 292 (Minn. 1985); Rodriguez v. Horton, 95 N.M. 356, 359-360 (Ct. App. 1980); Helmbrecht v. St. Paul Ins. Co., 122 Wis. 2d 94, 117-118 (1985). See generally R. Mallen & V. Levit, Legal Malpractice § 580, at 723-726 (2d ed. 1981). Although properly informed of all the relevant law and facts, an attorney may nevertheless cause a client to settle a case for an amount below that which competent counsel would approve. As the authorities cited above tend to show, such a situation is more theoretical than real. The typical case of malpractice liability for an inadequate settlement involves an attorney who, having failed to prepare his case properly or lacking the ability to handle the case through trial (or both), causes his client to accept a settlement not reasonable in the circumstances.

*647 A plaintiff who claims that his attorney was negligent in the prosecution of a tort claim will prevail if he proves that he probably would have obtained a better result had the attorney exercised adequate skill and care. McLellan v. Fuller, supra at 378. Brooks’s case was tried on this theory, and thus first involved the question of Fishman’s negligence in the settlement of Brooks’s claim and, second, if that were established, the question whether, if the claim had not been settled, Brooks would probably have recovered more than he received in the settlement. This is the traditional approach in the trial of such a case. The original or underlying action is presented to the trier of fact as a trial within a trial. If the trier of fact concludes that the attorney was negligent, a matter on which expert testimony is usually required (see Pongonis v. Saab, post 1005 [1985]), the consequences of that negligence are determined by the result of the trial within the trial. Thus, in the trial within the trial in this case, the jury had to determine whether the driver negligently caused Brooks’s injury and, if so, the damages Brooks suffered and the comparative fault of Brooks and the driver. On this approach to the trial of a legal malpractice action, except as to reasonable settlement values, no expert testimony from an attorney is required to establish the cause and the extent of the plaintiff’s damages. 1

1. Over Fishman’s objection, the judge properly admitted expert testimony from an experienced tort lawyer and an experienced claims adjuster as to the reasonable settlement value of *648 the underlying claim at the time it was settled. The attorney testified that such a case normally would have settled for $450,000 to $500,000. The claims adjuster estimated that such a case would have settled for $400,000 to $450,000.

Fishman argues that the settlement value of the underlying action was not a proper measure of damages. Brooks does not assert that it was; rather, he argues that proof of the fair settlement value of the underlying action was an important element of his case against Fishman. If, in spite of Fishman’s negligent preparation of the personal injury case, settlement was made in an amount that properly prepared counsel reasonably could have recommended, Brooks would have suffered no loss from Fishman’s negligence. Consequently, evidence of the fair settlement value of the underlying claim was admissible to prove not only Fishman’s negligence but also that his negligence caused a loss to Brooks. See Rodriguez v. Horton, 95 N.M. 356, 360 (Ct. App. 1980). In precisely these terms and without objection from Fishman, the judge submitted a special question to the jury as to whether $160,000 was a fair settlement. The reasonableness of the $160,000 settlement was relevant, therefore, and on that question expert testimony was appropriate. See Williams v. Bashman, 457 F. Supp. 322, 328 (E.D. Pa. 1978); Duncan v. Lord, 409 F. Supp. 687, 693 (E.D. Pa. 1976); Warwick, Paul & Warwick v. Dotter, 190 So. 2d 596, 598 (Fla. App. 1966); Helmbrecht v. St. Paul Ins. Co., 122 Wis. 2d 94, 116 (1985). Cf. Worden v. Tri-State Ins. Co., 347 F.2d 336, 340-341 (10th Cir. 1965); Jiffy Foods Corp. v. Hartford Accident & Indem. Co., 331 F. Supp. 159, 160 (W.D. Pa. 1971).

Fishman also contends that admission of evidence concerning the fairness of the settlement was improper because it allowed the jury to impose liability by second-guessing the attorney’s judgment. The answer is that no liability would have been imposed for a settlement made within the range of settlement values that an attorney exercising due care would have recommended. Like a member of any other profession, an attorney is not immune from liability for the consequences of a negligent exercise of professional judgment. The absence of *649 any evidence that the insurer of the defendant in the underlying action would have settled for more than $160,000 is immaterial on the theory on which Brooks presented his case. If $160,000 did not equal or exceed the amount that a nonnegligent attorney would have recommended for settlement, the case should not have been settled.

If Fishman had wished the jury to understand that the experts ’ testimony was not to be considered on the issue of the damages that would have been recovered in the underlying action, he could have asked for a limiting instruction both at the time the evidence was admitted and in the judge’s final charge. He did neither. In fact, the judge instructed the jury on damages as in the typical personal injury tort action without reference to the settlement value of the underlying action.

2. Fishman now challenges the admission of expert testimony from a law school professor concerning the ethical obligations of attorneys in general and of Fishman in particular. At trial Fishman objected successfully to the professor’s qualifications to give an opinion on an attorney’s standard of care. Fishman advanced and withdrew an objection to the relevancy of expert testimony concerning ethical standards governing the conduct of a practicing attorney. He did not renew his relevancy objection at any time, nor does he argue here an objection to any specific question asked of the professor. There is thus nothing before us requiring appellate review.

We add a brief comment about the relationship between the canons of ethics and an attorney’s duty of care to his client. A violation of a canon of ethics or a disciplinary rule (S.J.C. Rule 3:07, as amended through 395 Mass. 1106 [1985]), is not itself an actionable breach of duty to a client. See Robert L. Sullivan, D.D.S., P.C. v. Birmingham, 11 Mass. App. Ct. 359, 368-369 (1981). As with statutes and regulations, however, if a plaintiff can demonstrate that a disciplinary rule was intended to protect one in his position, a violation of that rule may be some evidence of the attorney’s negligence. See, e.g., Cimino v. Milford Keg, Inc., 385 Mass. 323, 327 (1982) (statute forbidding sale of liquor to intoxicated persons intended to protect accident victims); LaClair v. Silberline Mfg. Co., 379 Mass. 21, 29 (1979) *650 (worker’s compensation statute intended to protect employees); Perry v. Medeiros, 369 Mass. 836, 841 (1976) (building code intended to protect tenants in common areas). Cf. Beecy v. Pucciarelli, 387 Mass. 589, 590 n.3, 597 (1982) (disciplinary rules not intended to protect client’s opponent).

Expert testimony concerning the fact of an ethical violation is not appropriate, any more than expert testimony is appropriate concerning the violation of, for example, a municipal building code. Perry v. Medeiros, supra at 842. A judge can instruct the jury (or himself) concerning the requirements of ethical rules. The jurors need no expert on legal ethics to assess whether a disciplinary rule was violated. A jury would not be aided, and their function could be impinged upon, by expert testimony in such a circumstance. See Perry v. Medeiros, supra. Of course, an expert on the duty of care of an attorney properly could base his opinion on an attorney’s failure to conform to a disciplinary rule.

3. The judge did not err in admitting, over general objection, testimony from a pharmacist concerning the side effects (e.g., drowsiness) of a nonprescription drug. There was evidence that a defendant in the personal injury action, the driver of the vehicle, had taken the drug before the accident. The pharmacist testified concerning generalities and possibilities and not concerning the specific effect of the drug on the driver in this case. Admission of that evidence as tending to prove the driver’s negligence might have been error in the absence of other evidence concerning the influence of the drug on the driver. See LaClair v. Silberline Mfg. Co., 379 Mass. 21, 32 (1979). That the driver took the drug and that it could cause drowsiness were relevant, however, to the question of Fishman’s negligence. Although, in a statement made to her insurer shortly after the accident, the driver had admitted that she was taking medication, Fishman did not learn of the facts concerning the drug before the case was settled.

4. Fishman contends that certain statements admitted as prior inconsistent statements did not satisfy the requirements of G. L. c. 233, § 23 (1984 ed.). Brooks called Fishman to testify as part of his case in chief. Fishman’s own counsel then questioned *651 him extensively in “cross-examination,” during which Fishman explained his position substantially as if he had been called as a witness on his own behalf. Thereafter Brooks questioned him again. After Fishman had left the stand, Brooks offered testimony from a prior proceeding in which Fishman had made statements that were inconsistent with statements Fishman made during “redirect” examination.

Fishman objected to the admission of these statements in part on the ground that the offer should have been made while he was on the stand. For the purposes of this case, we accept the objection as adequate to raise Brooks’s failure to comply with the condition of G. L. c. 233, § 23, that a witness one “produces” may be impeached by prior inconsistent statements only if the witness has been given an opportunity to acknowledge or deny and, where appropriate, to explain them. Section 23 restricts only the use of prior inconsistent statements by a “party who produces a witness.” If Fishman had testified as a witness on his own behalf, Brooks properly could have offered prior inconsistent statements without establishing any foundation for doing so. Sirk v. Emery, 184 Mass. 22, 25 (1903). Commonwealth v. Shagoury, 6 Mass. App. Ct. 584, 597 (1978), cert. denied, 440 U.S. 962 (1979). In the circumstances, once Fishman had testified extensively on questioning by his own counsel, § 23 did not restrict the admission of prior inconsistent statements because Brooks effectively was no longer the party who had produced Fishman as a witness. 2

5. The judge did not abuse his discretion in excluding a photograph said to be of “the scene of the accident, or the *652 approximate scene of the accident.” The date when the photograph was taken was never established. Other evidence demonstrated the nature of the roadway.

6. Fishman’s challenge to the judge’s charge concerning the abuse of process claim against him is without merit. Indeed, the charge may have been overly favorable to Fishman because, at one point, the judge instructed the jury that Brooks had to prove not only that Fishman had an ulterior motive in bringing the action but also that Fishman had no basis for bringing the action. Proof of the groundlessness of an action is not an essential element of an action for abuse of process. See Beecy v. Pucciarelli, 387 Mass. 589, 595-596 (1982); Dangel v. Offset Printing, Inc., 342 Mass. 170, 171 (1961). That the person commencing the litigation knew or had reason to know his claim was groundless is relevant, however, as tending to show that the process was used for an ulterior purpose. See Lorusso v. Bloom, 321 Mass. 9, 10 (1947); Reardon v. Sadd, 262 Mass. 345, 348 (1928). 3

Judgment affirmed.