*860ROBERTSON, Justice, for the Court:

I.

This matter is before the Court on Petition for Rehearing presenting primarily the question whether we should, as a necessary incident to a just adjudication of the case at bar, refine and elaborate upon our law regarding (a) the standard of care applicable to physicians in medical malpractice cases and (b) the matter of how expert witnesses may be qualified in such litigation. We greatly expanded the old locality rule in King v. Murphy, 424 So.2d 547 (Miss.1982). Experience and reason suggest that further refinements are necessary and in the interest of justice, generally and in this case.

When this matter was before the Court on direct appeal, we determined that the judgment below' in favor of the surgeon, Dr. Glyn R. Hilbun, rendered following the granting of a motion for a directed verdict, had been correctly entered, two justices dissenting and two justices concurring specially. That result was perceived as required under our old locality rule, pre-King variety, pursuant to which the plaintiff’s offer of the expert testimony of two eminently qualified physicians from Cleveland, Ohio, had been excluded.

For the reasons set forth below, we now regard that our original decision was incorrect. The opinion formally released on November 9, 1983, is withdrawn and instead thereof the instant opinion is substituted. The judgment of the Circuit Court is vacated and this case is remanded for a new trial on all issues.

II.

Terry 0. Hall was admitted to the Singing River Hospital in Jackson County, Mississippi, in the early morning hours of May 18, 1978, complaining of abdominal discomfort. Because he was of the opinion his patient had a surgical problem, Dr. R.D. Ward, her physician, requested Dr. Glyn R. Hilbun, a general surgeon, to enter the case for consultation. Examination suggested that the discomfort and illness were probably caused by an obstruction of the small bowel. Dr. Hilbun recommended an exploratory laporatomy. Consent being given, Dr. Hilbun performed the surgery about noon on May 20, 1978, with apparent success.

Following surgery Mrs. Hall was moved to a recovery room at 1:35 p.m., where Dr. Hilbun remained in attendance with her until about 2:50 p.m. At that time Mrs. Hall was alert and communicating with him. All vital signs were stable. Mrs. Hall was then moved to a private room where she expired some 14 hours later.

On May 19, 1980, Glenn Hall commenced this wrongful death action by the filing of his complaint (nee declaration) in the Circuit Court of Jackson County, Mississippi. Named as defendants were Glyn R. Hilbun, M.D., and the Singing River Hospital, its administrator and several then unknown nurses.

This action was called for trial on July 13, 1981. Prior to that time all defendants with the exception of Dr. Hilbun had been dismissed.1 Not only was Dr. Hilbun the sole defendant at trial, he is the sole appel-lee here.

At trial Glenn Hall, plaintiff below and appellant here, described the fact of the surgery. He then testified that he remained with his wife in her hospital room from the time of her arrival from the recovery room at approximately 3:00 p.m. on May 20, 1978, until she ultimately expired at approximately 5:00 a.m. on the morning of May 21. Hall stated that his wife complained of pain at about 9:00 p.m. and was given morphine for relief, after which she fell asleep. Thereafter, Hall observed that his wife had difficulty in breathing which he reported to the nurses. He inquired if something was wrong and was told his *861wife was all right and that such breathing was not unusual following surgery. The labored breathing then subsided for an hour or more. Later, Mrs. Hall awakened and again complained of pain in her abdomen and requested a sedative, which was administered following which she fell asleep. Mrs. Hall experienced further difficulty in breathing, and her husband reported this, too. Again, a nurse told Hall that such was normal, that patients sometimes make a lot of noise after surgery.

After the nurse left the following occurred, according to Hall.

[A]t this time I followed her [the nurse] into the hall and walked in the hall a minute. Then I walked back into the room, and walked back out in the hall. Then I walked into the room again and I walked over to my wife and put my hand on her arm because she had stopped making that noise. Then I bent over and flipped the light on and got closer to her where I could see her, and it looked like she was having a real hard problem breathing and she was turning pale or a bluish color. And I went to screaming.

Dr. Hilbun was called and came to the hospital immediately only to find his patient had expired. The cause of the death of Terry 0. Hall was subsequently determined to be adult respiratory distress syndrome (cardio-respiratory failure).

Dr. Hilbun was called as an adverse witness and gave testimony largely in accord with that above. He stated Dr. Ward requested consultation concerning Mrs. Hall’s illness. He related that his diagnosis of a blocked intestine was correct, as revealed by the surgery, and that the surgery was a success. He testified that a surgeon operating in the Singing River Hospital was assisted by the nurses in the surgical ward who were on duty at the time, and that he had no option in their selection, had no way of knowing their qualifications, but did assume they were competent because they were selected by the hospital for duty in the surgical ward.

Dr. Hilbun stated the surgery was performed on a Saturday. Following the patient’s removal to her room, he “went home and was on call that weekend for anything that might come up.” Dr. Hilbun made no follow-up contacts with his patient, nor did he make any inquiry that evening regarding Mrs. Hall’s post-operative progress. Moreover, he was not contacted by the nursing staff or others concerning Mrs. Hall’s condition during the afternoon or evening of May 20 following surgery, or the early morning hours of May 21, although the exhibits introduced at trial disclose fluctuations in the vital signs late in the evening of May 20 and more so, in the early morning hours of May 21. Dr. Hil-bun’s next contact with his patient came when he was called by Glenn Hall about 4:55 or 5:00 that morning. By then it was too late.

Ironically, during those early morning hours of May 21, Dr. Hilbun was called by a member of the nursing staff concerning a patient who was in a room adjoining Mrs. Hall’s, but Dr. Hilbun was not advised of Mrs. Hall’s condition and apparently he did not inquire.

The autopsy performed upon Mrs. Hall’s body revealed the cause of death and, additionally, disclosed that a laporatomy sponge had been left in the patient’s abdominal cavity. The evidence, however, without contradiction establishes that the sponge did not contribute to Mrs. Hall’s death. Although the sponge may ultimately have caused illness, this possibility was foreclosed by the patient’s untimely death.

Plaintiff’s theory of the case centered around the post-operative care provided by Dr. Hilbun. Two areas of fault suggested were Dr. Hilbun’s failure to make inquiry regarding his patient’s post-operative course prior to his retiring on the night of May 20 and his alleged failure to give appropriate post-operative instructions to the hospital nursing staff.

When questioned at trial, Dr. Hilbun first stated that he had practiced for 16 years in the Singing River Hospital and was familiar with the routine of making surgical notes, i.e., a history of the sur*862gery. He explained that the post-operative orders were noted on the record out of courtesy by Dr. Judy Fabian, the anesthesiologist on the case. He stated such orders were customarily approved by his signature or he would add or subtract from the record to reflect the exact situation.

Dr. Hilbun was asked to read the postoperative orders as noted on May 20, 1978. In pertinent part, his response follows:

Q. Okay, is that done in a shorthand form?

A. To RR; that means to recovery room.

Q. Okay.

A. That is an accepted abbreviation. All right, (2) vital signs every fifteen minutes until stable, then hourly times four, then routinely. (3) NPO. That means nothing by mouth. (4) Intake and output.

Q. Just a second. Intake and output; what does that particular order mean?

A. This woman has a levin tube in, and she has a Foley catheter in her bladder. She has I.V.s in her arm. We like to know exactly how much is going in and how much is coming out so we can keep up with her fluid balance. She is not going to be eating for several days.

Q. The tube is going down her nose, where was that tube going to?

A. To her stomach.

Q. Into her stomach. And what were the other two tubes that she had now?

A. She had a Foley catheter. That’s a catheter in your bladder. It is put there for several reasons. One is to keep up with the intake and output; the other is to get the bladder out of the way, because you don’t want to operate on someone with a full bladder and have the bladder in the way.

Q. Okay, is there another tube in her with intravenous fluids?

A. I.V. fluids; yes.

Q. So the I & 0 abbreviation there is to keep up with the intake and output?

A. Right.

Q. Okay, go to the next one.

A. Hemoglobin and (inaudible) in the morning. That is a blood count the next morning.

Q. That was to be done on the 21st; the next morning?

A. Right. (6) Bed rest. Ambulate in a.m. That means to get her up and walk her in the morning. As I mentioned before, nasogastric tube — the tube from your nose to your stomach. We scope to suction. That’s to keep the stomach empty.

Q. So the jury will understand later, that is again abbreviated N-G?

A. N-G tube. That’s the common abbreviation. Okay, insert Foley catheter. We have talked about the Foley catheter. Run D-5 (inaudible) at 125 c.c.’s per hour.

Q. Would you explain what that means, please?

A. Okay. That’s I.V. fluids. Okay, we run at 125 cc’s per day. If you ran 100 cc’s per hour and you had ten of those, that would be a ten hour bottle. So this is going to run less than ten hours. We will say around seven hours, or something like that. We know we can regulate it. We have a cc dropper. We know exactly how many cc’s drops in per hour. We know how much fluid is going in per hour.

Q. Okay. And the next order?

A. The post-operative medication that we give for pain is morphine, 10 milligrams; that is a unit of measurement. And Phenergan, which is 25 milligrams. Phenigan is a kind of an anahistamene [sic] tranquilizer, anti-nausea to keep you from vomiting. If you add it with the morphine, it really cuts down the vomiting and post-operative nausea. This is to be given i.m. — in the muscle — every four hours as needed for pain. The next one—

Q. —One moment before you go on. That simply means when the patient is in pain she can have that intra-muscular, but no more often than every four hours?

A. Right.

*863Q. Okay, go ahead.

A. If she doesn’t need it, she doesn’t have to have it. The next one is number 12, Keflin, which is antibiotic, 1 gram I.V. every six hours.

Q. The morphine now was for pain?

A. Right.

Q. What was the second medication?

A. Phenergan.

Q. That is to help her sleep?

A. That’s an anti-nausea.

Q. And the Keflin, what was the reason for that?

A. Some physicians like to give prophylactic antibiotics after a serious operation or major surgery; some don’t. I’m from the school that I had rather prevent an infection before it gets there, than have to start treating it after it gets wound up and everything.

Q. Keflin is an antibiotic that is used with great regularity in the hospitals, especially with post-surgery; is that right?

A. Right.

Q. Now after this surgery, while Mrs. Hall was in the recovery room did I understand you to say earlier that you checked on her there?

A. When I got through operating on Mrs. Hall, with this major surgical procedure in an emergency situation — and I always do — I went to the recovery room with Mrs. Hall, stayed in the recovery room with Mrs. Hall, listened to her chest, took her vital signs, stayed there with her and discharged her to the floor. The only time I left the recovery room was to go into the waiting room and tell Mr. Hall. Mrs. Hall waked up, I talked to her, she said she was cold. She was completely alert.

Q. Now, you went to the recovery room to see her because you were still her physician following her post-surgery?

A. I was one of her physicians. I operated on her, and I go to the recovery room with everybody.

Q. Okay. You were the surgeon and you were concerned about the surgical procedures and how she was doing post-operatively, or either you are not concerned with your patients, how they do post-operatively?

A. As I said, I go to the recovery room with every one of my patients.

Q. Then you are still the doctor?

A. I was one of her physicians.

Q. Okay. And you customarily follow your patients following the surgery to see how they are doing as a result of the surgery, because you are the surgeon. Is that correct?

A. Yes.

Q. Let’s talk about Terry Hall.

A. In the recovery room?

Q. All right. You followed her to the recovery room?

A. Yes, I sure did.

Q. Okay. Were you through with her after she came out of the recovery room? A. No.

Q. How long do you follow a patient like Terry Hall?

A. Until she leaves the hospital.

Q. Okay. So ever how long she is in the hospital, you are going to continue to see her?

A. As long as my services are needed.

Insofar as the record reflects, Dr. Hilbun gave the nursing staff no instructions regarding the post-operative monitoring and care of Mrs. Hall beyond those detailed in his testimony quoted above. Dr. Hilbun had no contact with Mrs. Hall after 3:00 p.m. on May 20. Fourteen hours later she was dead.

The plaintiff called Dr. S.O. Hoerr, a retired surgeon of Cleveland, Ohio, as an expert witness. The record reflects that Dr. Hoerr is a cum laude graduate of the Harvard Medical School, enjoys the respect of his peers, and has had many years of surgical practice. Through him the plaintiff sought to establish that there is a national standard of surgical practice and surgical care of patients in the United States to which all surgeons, including Dr. Hilbun, *864are obligated to adhere. Dr. Hoerr conceded that he did not know for a fact the standard of professional skill, including surgical skills and post-operative care, practiced by general surgeons in Pascagou-la, Mississippi, but that he did know what the standard should have been.

Relying on Dazet v. Bass, 254 So.2d 183 (Miss.1971), which at the time [July 13, 1981] was this Court’s latest utterance on the subject of who may testify as an expert witness in a medical malpractice action, the trial court ruled that Dr. Hoerr was not qualified to give an opinion as to whether Dr. Hilbun’s post-operative regimen departed from the obligatory standard of care. In his ruling the trial judge made the following statement:

I think the local rule [the locality rule] has been applied too restrictively in this state, and my basic belief is that it has got to be enlarged. But I don’t believe our Supreme Court has gone that far and I personally don’t think it can be applied nationally. Anyway, that is left up to the Supreme Court and I hope this case will help verify that.

Thereafter, the plaintiff made an extensive question and answer proffer of Dr. Hoerr’s testimony.

Dr. David Peter Lango Sachs, also of Cleveland, Ohio, was offered by the plaintiff as a witness, and it appears that he was eminently qualified in his specialty of pulmonary diseases. He also was unfamiliar with the standard of care in Pascagoula, Mississippi, although well versed in the national standards. Dr. Sachs was not permitted to testify because of this court’s ruling in Dazet v. Bass. An appropriate proffer of Dr. Sachs’ testimony was made by plaintiff.

Parts of Dr. Hoerr’s testimony excluded under the trial judge’s ruling follow:

A. My opinion is that she [Mrs. Hall] did not receive the type of care that she should have received from the general surgical specialist and that he [Dr. Hil-bun] was negligent in not following this patient; contacting, checking on the condition of his patient sometime in the evening of May 20th. It is important in the post-operative care of patients to remember that very serious complications can follow abdominal operations, in particular in the first few hours after a surgical procedure. And this can be inward bleeding; it can be an explosive development in an infection; or it can be the development of a serious pulmonary complication, as it was in this patient. As a result of her condition, it is my opinion that he lost the opportunity to diagnose a condition, which in all probability could have been diagnosed at the time by an experienced general surgeon, one with expertise in thoracic surgery. And then appropriate treatment could have been undertaken to abort the complications and save her life.

There are different ways that a surgeon can keep track of his patient — “follow her” as the expression goes — besides a bedside visit, which is the best way and which need not be very long at all, in which the vital signs are checked over. The surgeon gets a general impression of what’s going on. He can delegate this responsibility to a competent physician, who need not be a surgeon but could be a knowledgeable family practitioner. He could call in and ask to speak to the registered nurse in charge of the patient and determine through her what the vital signs are, and if she is an experienced Registered Nurse what her evaluation of the patient is. From my review of the record, none of these things took place, and there is no effort as far as I can see that Dr. Hilbun made any effort to find out what was going on with this patient during that period of time. I might say or add an additional belief that I felt that the nursing responsibility which should have been exercised was not exercised, particularly at the 4:00 a.m. level when the pulse rate was recorded at 140 per minute without any effort as far as I can see to have any physician see the patient or to get in touch with the operating surgeon and so on.

*865There is an additional thing that Dr. Hilbun could have done if he felt that the nursing services might be spotty — sometimes good, sometimes bad. This is commonly done in Columbus, Ohio, in Ashta-bula, Pascagoula, etcetera. He could put limits on the degree in which the vital signs can vary, expressing the order that he should be called if they exceeded that. Examples would be: Call me if the pulse rate goes over 110; call me if the temperature exceeds 101; call me if the blood pressure drops below 100. There is a simple way of spelling out for the nursing services what the limits of discretion belong to them and the point at which the doctor should be called.

Q. Dr. Hoerr, the post-operative orders in the records that you have — I believe they are the yellow sheets toward the front. (Looking for order) Now, I have directed your attention to the post-operative orders of Dr. Hilbun, which have previously been identified by him as' that. Have you had an opportunity to review the post-operative orders?

A. Yes, I have.

Q. Were there any orders in there at any place, or any other place in the records for that matter, in which Dr. Hilbun directed anyone to contact him if there were certain changes in vital signs?

A. Not that I could find. The answer is no. I couldn’t see any there.

[emphasis added]

Dr. Hilbun did not place any orders on the chart for the nurses to call him in the event of a change in the vital signs of Mrs. Hall. He normally made afternoon rounds between 4:00 and 5:00 p.m. but didn’t recall whether he went by to see her before going home. Dr. Hilbun was on call at the hospital that weekend for anything which might come up. Subsequent to the operatioñ and previous to Mrs. Hall’s death, he was called about one other person on the same ward, one door down, twice during the night. He made no inquiry concerning Mrs. Hall, nor did he see or communicate with her.

Dr. Donald Dohn, of expertise unquestioned by plaintiff and with years of practical experience, gave testimony for the defendant. He had practiced on the staff at the Cleveland Clinic Foundation in Cleveland, Ohio, beginning in 1958.2 Fortuitously, he had moved to Pascagoula, Mississippi, about one month before the trial. Dr. Dohn stated he had practiced in the Singing River Hospital for a short time and there was a great difference in the standard of care in medical procedures in Cleveland, Ohio, and those in Pascagoula, Mississippi. Although he had practiced three weeks in Pascagoula, he was still in the process of acquainting himself with the local conditions. He explained the differences as follows:

Well, there are personnel differences. There are equipment differences. There are diagnostic differences. There are differences in staff responsibility and so on. For example, at the Cleveland Clinic on our service we had ten residents that we were training. They worked with us as our right hands. Here we have no staff. So it is up to us to do the things that our residents would have done there. There we had a team of five or six nurses and other personnel in the operating room to help us. Here we have nurses in the operating room, but there is no assigned team. You get the luck of the draw that day. I am finding out these things myself. Up there it is a big center; a thousand beds, and it is a regional center. We have tremendous advantages with technical systems, various types of x-ray equipment that is [sic] sophisticated. Also in terms of the intensive care unit, we had a Neurosurgical Intensive Care with people who were spe-*866dally trained as a team to work there. From my standpoint personally, I seldom had to do much paperwork there as compared to what I have to do now. I have to dictate everything and take all my notes. So, as you can see, there is a difference.

Finally, he again stated the standard of care in Ohio and the standard of care in the Singing River Hospital are very different, although it is obvious to the careful reader of Dr. Dohn’s testimony that in so doing he had reference to the differences in equipment, personnel and resources and not differences in the standards of skill, medical knowledge and general medical competence a physician could be expected to bring to bear upon the treatment of a patient.

At the conclusion of the plaintiff’s case, defendant moved for a directed verdict on the obvious grounds that, the testimony of Drs. Hoerr and Sachs having been excluded, the Plaintiff had failed to present a legally sufficient quantum of evidence to establish a prima facie case. The Circuit Court granted the motion and on July 17, 1981, final judgment was entered in favor of Defendant, Glyn R. Hilbun, and against Glenn Hall, husband of Terry 0. Hall, the deceased.

In due course thereafter, Hall filed a motion for a new trial which on September 11, 1981, was overruled and denied. Hall then timely perfected his appeal to this Court.

III.

A. General Considerations

Medical malpractice is legal fault by a physician3 or surgeon. It arises from the failure of a physician to provide the quality of care required by law. When a physician undertakes to treat a patient, he takes on an obligation enforceable at law to use minimally sound medical judgment and render minimally competent care in the course of the services he provides. A physician does not guarantee recovery. If patient sustains injury because of the physician’s failure to perform the duty he has assumed under our law, the physician may be liable in damages. A competent physician is not liable per se for a mere error of judgment, mistaken diagnosis or the occurrence of an undesirable result.

The twin principles undergirding our stewardship of the law regulating professional liability of physicians have always been reason and fairness. For years in medical malpractice litigation we regarded as reasonable and fair what came to be known as the “locality rule” (but which has always consisted of at least two separate rules, one a rule of substantive law, the other a rule of evidence).

First, under the locality rule, we have heretofore recognized as a rule of substantive law that a physician is bound to bestow to each patient such reasonable and ordinary care, skill, and diligence and to exercise such good medical judgment as physicians and surgeons in good standing in the same neighborhood or locality, in the same general line of practice, ordinarily have and exercise in like cases. Hill v. Stewart, 209 So.2d 809, 812 (Miss.1968); DeLaughter v. Womack, 250 Miss. 190, 202, 164 So.2d 762, 766 (1964); Copeland v. Robertson, 236 Miss. 95, 110, 112 So.2d 236, 241 (1959).

Second, as a rule of evidence, we have heretofore held that, in addition to possessing all of the other qualities requisite for judicial acceptance as an expert witness generally, a medical expert would not be allowed to testify in a medical malpractice case unless he practiced in the neighborhood or locality and was familiar with the local standard of care. See Holmes v. Elliott, 443 So.2d 825, 827-833 (Miss.1983); King v. Murphy, 424 So.2d 547, 549-550 (Miss.1982).

Both “prongs” of the locality rule have fallen under attack in recent years. It is urged that the circumstances which have *867given rise to the rules have passed out of existence. The practice of medicine in general and medical malpractice litigation in particular are said to have achieved a level sophistication that require a modernization of our law. There is merit in the attack. Suffice it to say that the rules we have heretofore employed do not seem nearly so consonant with reason and fairness as they once did.

Just over two years ago we recognized that all was not well in this troubled area of the law. In King v. Murphy, 424 So.2d 547 (Miss.1982), we greatly expanded the concept of the “neighborhood or locality”, within the contemplation of the substantive rule regulating the standard of care, to include geographically at least the entire state of Mississippi plus “a reasonable distance adjacent to state boundaries.” 424 So.2d at 550. (emphasis added).

King also removed the geographical restrictions on the pool from which expert witnesses might be drawn by either adversary. King held that

an expert witness who is knowledgeable of, and familiar with, the statewide standard of care shall not have his testimony excluded on the ground that he does not practice in this state.

424 So.2d at 550 (emphasis added).

Under King an otherwise competent medical expert, say, from New York, would be eligible to testify if he had, prior to taking the witness stand, substantially familiarized himself with the standard of care in the (greatly enlarged) “locality or neighborhood”.

Since King, the docket of this Court has continued to be supplied with medical malpractice cases, a number of which are pending at this time. In the light of these cases, and the excellent briefs and arguments we have received from counsel, several things are apparent:

First, King recognizes that the locality rule is not and has never been just one rule. King draws a distinction between the substantive rule of law governing the liability vel non of physicians and the rule of evidence regulating the appearance of expert witnesses. In this sense King establishes a satisfactory general framework within which to handle these cases in the future.

Second, regarding the substantive standard, reflection suggests that further refinement and clarification are necessary. More sharpness needs to be brought to the distinction between the level of care a physician may be expected to render by reference to his skill, knowledge, judgment and general competence, on the one hand, and that which may reasonably be expected by reference to the facilities, equipment, personnel and resources reasonably available to him in the course of treatment. On the point of reasonable availability of resources, there are great variances from rural to urban areas within the King-defined “locality or neighborhood”. These need be taken into account. Further, for the sake of intellectual honesty, we should go ahead and state forthrightly what everyone who has read King surely knows: that the “locality or neighborhood” concept as we have heretofore known it has been obliterated.

Third, King’s evidentiary rule regulating expert witnesses seems clear to us. The eases that have come before the Court since King, however, suggest that it is not wholly understood in some quarters.4 On this point, we wish to make it clear that King means what it says: where a proffered medical expert lives or practices per se has no relevance to whether he may give expert opinion testimony at trial.

B. The Experience In Other States

Our law is not administered in isolation, any more than the physicians who practice in this state work in isolation from the rest of the country. We are not the first state to confront these problems.

*868No doubt there was a time when all states embraced what has been simplistically denominated “the locality rule”. Formulated over a hundred years ago to protect the rural and small town practitioner presumed to be less adequately informed and equipped than his colleague in the city the rule gradually came to hold sway throughout the country. See, e.g., Small v. Howard, 128 Mass. 131, 132, 35 Am.Rep. 363, 365 (1880); Smothers v. Hanks, 34 Iowa 286, 289-90, 11 Am.Rep. 141, 142-43, (1872).

Times have changed and perceptions of reality have changed. We now have a plethora of varying rules enforced among the fifty states in medical malpractice cases. Some states have opted for what has come to be known as the “national standard of care”. See, e.g., Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So.2d 254, 257-58 (Ala.1982); Morrison v. MacNamara, 407 A.2d 555, 565 (D.C.1979); Greenstein v. Meister, 279 Md. 275, 368 A.2d 451, 456-57 (1977); see also Martin v. Bralliar, 36 Colo.App. 254, 259, 540 P.2d 1118, 1121 (1975) (national standard applied to the facts in this case); Brune v. Belinkoff, 354 Mass. 102, 108-09, 235 N.E.2d 793, 798 (1968) (national standard modified by local facility limitations); Hart v. Steele, 416 S.W.2d 927, 931 (Mo.1967) (same); Pederson v. Dumouchel, 72 Wash.2d 73, 79, 431 P.2d 973, 977-78 (1967) (same); cf. McCormack v. Lindberg, 352 N.W.2d 30, 36 (Minn.Ct.App.1984) (national standard applied to specialists); Moultrie v. Medical University of South Carolina, 280 S.C. 159, 311 S.E.2d 730, 731 (1984) (same); Taylor v. Hill, 464 A.2d 938, 943 (Me.1983) (same); Steinbach v. Barfield, 428 So.2d 915, 919-20 (La.Ct.App.1983) (same); Wentling v. Jenny, 206 Neb. 335, 338-39, 293 N.W.2d 76, 79 (1980) (same); Orcutt v. Miller, 95 Nev. 408, 595 P.2d 1191, 1194-95 (1979) (same); Gaston v. Hunter, 121 Ariz. 33, 54-55, 588 P.2d 326, 346 (1978) (same); Simpson v. Davis, 219 Kan. 584, 587-88, 549 P.2d 950, 953-54 (1976); Bruni v. Tatsumi, 46 Ohio St.2d 127, 134-35, 346 N.E.2d 673, 679 (1976) (same); Kronke v. Danielson, 108 Ariz. 400, 403, 499 P.2d 156, 159 (1972) (same); Naccarato v. Grob, 384 Mich. 248, 253, 180 N.W.2d 788, 791 (1970) (same).

The law in other states has imposed a uniform statewide standard of care. See, e.g., Fitzmaurice v. Flynn, 167 Conn. 609, 617, 356 A.2d 887, 892 (1975); Ives v. Redford, 219 Va. 838, 842, 252 S.E.2d 315, 318 (1979).

Still other states have expanded the locality rule to require that a physician possess and exercise that degree of skill and care which a physician of ordinary prudence and skill, practicing in the same or a similar community, would have exercised in the same or similar circumstances.5 See, e.g., Baylis v. Wilmington Medical Center, Inc., 477 A.2d 1051, 1057 (Del.1984); Bartimus v. Paxton Community Hospital, 120 Ill.App.3d 1060, 76 Ill.Dec. 418, 424, 458 N.E.2d 1072, 1078 (1983); McPherson v. Ellis, 305 N.C. 266, 270, 287 S.E.2d 892, 895 (1982); Jenkins v. Parrish, 627 P.2d 533, 537 (Utah 1981); Priest v. Lindig, 583 P.2d 173, 176 (Alaska 1978); Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 3-4, 574 P.2d 136, 138 (1977); Kortus v. Jensen, 195 Neb. 261, 269, 237 N.W.2d 845, 850 (1976); Gambill v. Stroud, 258 Ark. 766, 770-71, 531 S.W.2d 945, 948-49 (1976); Groffe v. Pharmaseal Laboratories, Inc., 90 N.M. 764, 767, 568 P.2d 600, 603-04 (1976); see also Haught v. Maceluch, 681 F.2d 291, 303 (5th Cir.1982) (applying Texas law).6

*869Finally there are states which doggedly cling to the old locality rule. See, e.g., Campbell v. Oliva, 424 F.2d 1244, 1248 (6th Cir.1970) (applying Tennessee law).

We have carefully considered these and other cases together with the excellent briefs of counsel in this and several related cases now pending before the court. We hope that today’s opinion will reflect that we have learned from the mistakes and experiences of others, as well as our own.

One mistake many have made has been the attempt to simplify that which is not so simple. Among such mistakes have been the pretention that the locality rule was a single rule, the use in a rule of the phrase “standard of care” accompanied at most by an amorphous formulation of that standard, and the adoption of a “national standard of care” without explaining what is meant thereby or taking account of the realities of the universe in which physician and patient interact. Courts seldom advance the cause of justice when they forge unrealistically simplistic rules to regulate subtly complex activities and enterprises. Such efforts create more problems than they solve.

In the analysis and formulations that follow, we seek clarity, which is not always synonymous with simplicity. We seek a sensitive accommodation of the legitimate interests, on the one hand, of those who have taken and take seriously the Oath of Hippocrates, and on the other hand, of those who seek and receive health care. By the same token, we hope that today’s opinion will reflect that reason and fairness have subsumed passion and self-interest as the pillars upon which our rules of law ought to be based.

C. The Physician’s Duty of Care: A primary rule of substantive law

1. The Backdrop

Each physician, by virtue of the positive, substantive law of this state, has a duty of care consistent with the level of expertise the physician holds himself out as possessing and consistent with the circumstances of the case. That duty is non-dele-gable. See Pharr v. Anderson, 436 So.2d 1357, 1361 (Miss.1983). It is owing to each patient he or she undertakes to treat, and in that regard the patient has a correlative right. Injury caused by substantial violations of the physician’s duty and the patient’s right may subject the physician to tort liability.

Liability turns on a failure to provide the required level of care. It matters not whether this failure results from incompetence or negligence. Some of our cases have misleadingly stated that liability may result from either of two causes: “lack of skill or neglect to apply it if possessed”. Dazet v. Bass, 254 So.2d 183, 186 (Miss.1971); DeLaughter v. Womack, 250 Miss. 190, 202, 164 So.2d 762, 767 (1964); Newport v. Hyde, 244 Miss. 870, 875, 147 So.2d 113, 115 (1962). The matter is properly seen from the patient’s point of view. Liability results from the physician’s failure to provide requisite care under the circumstances, and nothing turns on whether this failure resulted from incompetence or neglect.

Our law has long focused upon the quality of care a physician’s knowledge and skill may enable him to render. Repeatedly in our cases we find the statement that

a physician must possess that reasonable degree of learning, skill and experience which is ordinarily possessed by others in his profession.

Hill v. Stewart, 209 So.2d 809, 812 (Miss.1968); DeLaughter v. Womack, 250 - Miss. 190, 201-202, 164 So.2d 762, 766 (1964); Copeland v. Robertson, 236 Miss. 95, 110, 112 So.2d 236, 241 (1959).

In its modernization of our previous rule, King v. Murphy uses the same starting point. 424 So.2d at 549.

*870The locality rule was superimposed upon this obviously valid general premise. We perceived physicians as more or less isolated in their local communities and held the level of care they were obligated to render was that generally prevailing in the community. By custom, physicians in each community were empowered to set the standards by which their professional conduct would be judged.

2. The Inevitable Ascendency of National Standards

In 1971, we faced a strong attack on the continuing validity and viability of the locality rule in Dazet v. Bass, 254 So.2d 183 (Miss.1971). On that occasion we were advised

that physicians now attend the same colleges, receive the same post graduate courses in their specialities, and go to the same seminars, that the standards of care for a specialist should be and are the same throughout the country, and that geographical conditions or circumstances are no longer valid as controlling the standards of a specialist’s care or competence.

254 So.2d at 187.

Though we rejected plaintiff’s case on procedural grounds, we recognized in Dazet that the point has “considerable force”. 254 So.2d at 187. The continued force of the point is evidenced by the step forward taken in King v. Murphy.

We would have to put our heads in the sand to ignore the “nationalization” of medical education and training. Medical school admission standards are similar across the country. Curricula are substantially the same. Internship and residency programs for those entering medical spe-cialities have substantially common components. Nationally uniform standards are enforced in the case of certification of specialists. Differences and changes in these areas occur temporally, not geographically.

Physicians are far more mobile than they once were. They frequently attend medical school in one state, do a residency in another, establish a practice in a third and after a period of time relocate to a fourth. All the while they have ready access to professional and scientific journals and seminars for continuing medical education from across the country. Common sense and experience inform us that the laws of medicine do not vary from state to state in anything like the manner our public law does.

King v. Murphy represents a recognition by this Court of what has long been an established fact: that the medical centers in Memphis, Birmingham, Mobile, New Orleans and other nearby areas in adjoining states are a very real part of the Mississippi-centered universe of hospitalization, medical care and treatment and other health related services.

Medicine is a science, though its practice be an art (as distinguished from a business). Regarding the basic matter of the learning, skill and competence a physician may bring to bear in the treatment of a given patient, state lines are largely irrelevant. That a patient’s temperature is 105 degrees means the same in New York as in Mississippi. Bones break and heal in Washington the same as in Florida, in Minnesota the same as in Texas. An abnormal blood sugar count should be interpreted in California as in Illinois as in Tennessee. A patient’s physiological response to an exploratory laparotomy and needs regarding post-operative care following such surgery do not vary from Ohio to Mississippi. A pulse rate of 140 per minute provides a danger signal in Pascagoula, Mississippi, the same as it does in Cleveland, Ohio. Bacteria, physiology and the life process itself know little of geography and nothing of political boundaries.

It is absurd to think that a physician examining a patient in his or her office would, by reference to the genuine health care needs of the patient, say: Because I practice in Mississippi (or the Deep South), I will make this diagnosis and prescribe this medication and course of treatment, but if I were in Iowa, I would do otherwise. We are confident (as the medical community of this state is no doubt confident) that Mississippi’s physicians are capable of ren*871dering and do in fact render a quality of care on a par with that in other parts of the country.

3. The Competence-Based National Standard Of Care: Herein Of the Limited Role Of Local Custom

All of the above informs our understanding and articulation of the competence-based duty of care. Each physician may with reason and fairness be expected to possess or have reasonable access to such medical knowledge as is commonly possessed or reasonably available to minimally competent physicians in the same specialty or general field of practice throughout the United States, to have a realistic understanding of the limitations on his or her knowledge or competence, and, in general, to exercise minimally adequate medical judgment. Beyond that, each physician has a duty to have a practical working knowledge of the facilities, equipment, resources (including personnel in health related fields and their general level of knowledge and competence), and options (including what specialized services or facilities may be available in larger communities, e.g., Memphis, Birmingham, Jackson, New Orleans, etc.) reasonably available to him or her as well as the practical limitations on same.

In the care and treatment of each patient, each physician has a non-delegable duty to render professional services consistent with that objectively ascertained minimally acceptable level of competence he may be expected to apply given the qualifications and level of expertise he holds himself out as possessing and given the circumstances of the particular case. The professional services contemplated within this duty concern the entire caring process, including but not limited to examination, history, testing, diagnosis, course of treatment, medication, surgery, follow-up, after-care and the like.

Emphasis is given the proposition that physicians incur civil liability only when the quality of care they render falls below objectively ascertained minimally acceptable levels. Use of such concepts as “average” are misleading and should be avoided, particularly in jury instructions, for such notions understood arithmetically suggest that the lower 50 percent of our physicians regularly engage in medical malpractice. We are confident that the percentage of physicians in this state who daily deliver to their patients a legally acceptable quality of care is quite high. The terminology we use, particularly in jury instructions, should reflect this reality.

Mention should be made in this context of the role of good medical judgment which, because medicine is not an exact science, must be brought to bear in diagnostic and treatment decisions daily. Some physicians are more reluctant to recommend radical surgery than are other equally competent physicians. There exist legitimate differences of opinion regarding medications to be employed in particular contexts. “Waiting periods” and their duration are the subject of bona fide medical controversy. What diagnostic tests should be performed is a matter of particularly heated debate in this era of ever-escalating health care costs. We must be vigilant that liability never be imposed upon a physician for the mere exercise of a bona fide medical judgment which turns out, with the benefit of 20-20 hindsight, (a) to have been mistaken, and (b) to be contrary to what a qualified medical expert witness in the exercise of his good medical judgment would have done. We repeat: a physician may incur civil liability only when the quality of care he renders (including his judgment calls) falls below minimally acceptable levels.

Different medical judgments are made by physicians whose offices are across the street from one another. Comparable differences in medical judgment or opinion exist among physicians geographically separated by much greater distances, and in this sense local custom does and must continue to play a role within our law, albeit a limited one.

' We recognize that customs vary within given medical communities and *872from one medical community to another. Conformity with established medical custom practiced by minimally competent physicians in a given area, while evidence of performance of the duty of care, may never be conclusive of such compliance. Cf. Helling v. Carey, 83 Wash.2d 514, 519 P.2d 981 (1974). The content of the duty of care must be objectively determined by reference to the availability of medical and practical knowledge which would be brought to bear in the treatment of like or similar patients under like or similar circumstances by minimally competent physicians in the same field, given the facilities, resources and options available. The content of the duty of care may be informed by local medical custom but never subsumed by it.

Conformity with a local medical custom may be one factor suggesting that a physician has fulfilled his obligation of care. On the other hand, failure to conform to an established medical custom regarding care will generally lead inescapably to the conclusion that the duty of care has been breached.

4. The Resources-Based Caveat to the National Standard of Care

The duty of care, as it thus emerges from considerations of reason and fairness, when applied to the facts of the world of medical science and practice, takes two forms: (a) a duty to render a quality of care consonant with the level of medical and practical knowledge the physician may reasonably be expected to possess and the medical judgment he may be expected to exercise, and (b) a duty based upon the adept use of such medical facilities, services, equipment and options as are reasonably available. With respect to this second form of the duty, we regard that there remains a core of validity to the premises of the old locality rule.

For reasons well known to all, the facilities, equipment, health care personnel, and other such resources reasonably available to Mississippi’s physicians vary from community to community. Major differences exist between the tools the physician has to work within rural Mississippi as contrasted with our more urban areas. Generally speaking, the most comprehensive availability of sophisticated medical facilities and equipment in this state may be found in Jackson.

Because of these differences in facilities, equipment, etc., what a physician may reasonably be expected to do in the treatment of a patient in rural Humphreys County or Greene County may vary from what a physician in Jackson may be able to do. A physician practicing in Noxubee County, for example, may hardly be faulted for failure to perform a CAT scan when the necessary facilities and equipment are not reasonably available. In contradistinction, objectively reasonable expectations regarding the physician’s knowledge, skill, capacity for sound medical judgment and general competence are, consistent with his field of practice and the facts and circumstances in which the patient may be found, the same everywhere.

One of the cases which started the present trend toward judicial abolition of the old locality rule, Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973 (1967), perceived that the quality of care a physician was obligated to render should be consistent

with the medical and professional means available in those centers that are readily accessible for appropriate treatment of the patient.

431 P.2d at 978 (emphasis added).

Another such case, Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d 793 (1968), similarly permits consideration of “the medical resources available to the physician”. 235 N.E.2d at 798.

Justice Hawkins spoke closer to home in his separate opinion in King:

[Sjmall town practitioners whose daily practice requires them to treat patients in what might be deemed less than ideal circumstances should not be penalized or obligated to ... utilize the same equipment of a medical specialist in a metropolitan hospital.

424 So.2d at 551 n. 1.

*873As a result of its resources-based component, the physician’s non-delegable duty of care is this: given the circumstances of each patient, each physician has a duty to use his or her knowledge and therewith treat through maximum reasonable medical recovery, each patient, with such reasonable diligence, skill, competence, and prudence as are practiced by minimally competent physicians in the same specialty or general field of practice throughout the United States, who have available to them the same general facilities, services, equipment and options.

5. King v. Murphy Revisited

When all that has been said above is considered, we today do little more than smooth some of the rough edges of King v. Murphy. King recognizes that, as a part of our law, the formulation of the duty of care is to be informed by standards of medical competence prevailing statewide in Mississippi “and for a reasonable distance adjacent to state boundaries”. 424 So.2d at 550. This necessarily includes Memphis, Mobile and New Orleans at the very least. When the standards of medical practice prevailing in Jackson, Mississippi, are added, it may be seen that for all practical purposes King has embraced what’ many call the “national standard of care”. Aside from highly specialized and in many instances still experimental services with respect to certain catastrophic diseases and medical problems, the quality of medical and health care in Memphis, Mobile, New Orleans and Jackson is consistent with that available anywhere in the land. The refinement of King we make on this score may be expected to eliminate legalistic debates over whether Birmingham, or Houston, or Nashville, or Atlanta is within “a reasonable distance adjacent to state boundaries”. Past that it should have little practical effect.

On the other hand, we have added to King a pragmatic addendum by today’s recognition that the physician’s duty of care must take into consideration the quality and kind of facilities, services, equipment and other resources available. Nothing in King precluded consideration of this factor, which in reason and fairness ought to be a part of our law’s approach to medical malpractice cases. Today we remove all doubt of the matter.7

As we deal with general principles, gray areas necessarily exist. One involves the case where needed specialized facilities and equipment are not available locally but are reasonably accessible in major medical centers—New Orleans, Jackson, Memphis. Here as elsewhere the local physician is held to minimally acceptable standards. In determining whether the physician’s actions comport with his duty of care, consideration must always be given to the time factor—is the physician confronted with what reasonably appears to be a medical emergency, or does it appear likely that the patient may be transferred to an appropriate medical center without substantial risk to the health or life of the patient? Consideration must also be given to the economic factors—are the proposed transferee facilities sufficiently superior to justify the trouble and expense of transfer? Further discussion of these factors should await proper cases.

D. Who May Qualify As Expert Medical Witness In Malpractice Case: A rule of evidence

As a general rule, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education (or a combination thereof), coupled with independence and lack of bias, may testify thereto in the form of an opinion or *874otherwise.8 Medical malpractice cases generally require expert witnesses to assist the trier of fact to understand the evidence. Kilpatrick v. Mississippi Baptist Medical Center, 461 So.2d 765, 768 (Miss.1984).

Generally, where the expert lives or where he or she practices his or her profession has no relevance per se with respect to whether a person may be qualified and accepted by the court as an expert witness. There is no reason on principle why these factors should have per se relevance in medical malpractice cases. This is the clear meaning of King v. Murphy wherein Justice Roy Noble Lee, speaking for the Court, wrote:

An expert witness ... shall not have his testimony excluded on the ground that he does not practice in this state.

424 So.2d at 550.

While the language of King is as clear as it can be, we are aware of two misinterpretations which have been given it among the bench and bar. First, some have read King as merely enlarging the pool of available medical expert witnesses to include those who geographically reside in areas adjacent to Mississippi. Physicians from Boston or Chicago or San Francisco would still be excluded as a matter of law. The place of professional residence of the expert, however, is of no relevance at all under King, so long as it is in this country. That the expert may hail from Oregon or Massachusetts or from Cleveland, Ohio, has no per se relevance.

Second, some have read King as requiring that the expert possess intimate knowledge of how things are done in the particular Mississippi medical facility in issue. King, however, expressly rejects the notion that a particular medical community or facility could by custom or agreement establish the standards by which a patient’s malpractice action should be adjudged. King recognizes that in the area of medical knowledge, skill and competence there is a common minimally acceptable standard throughout a neighborhood or locality geographically defined as including this state and “for a reasonable distance adjacent to state boundaries.” 424 So.2d at 550. The source of this standard (as refined in Subsection III(C) above) and the duty based upon it (as elaborated in Subsection III(C) above) is the positive law of the state, not medical custom. It is that minimum legal standard (to be sure, informed by customs) with which the expert must be familiar, yet we know that some lawyers argue and some trial judges read King quite differently.

What is really at issue here is whether we will treat medical expert witnesses the same as experts in other fields. The old locality rule and the misreading some have given King would add a geographical component. Though we regard the majority opinion in King as having clearly stated the rule, we are indebted to Justice Hawkins for reminding us persistently that there is no valid basis in judicial reason for not treating

the question of the competency of the testimony of physicians the same as any other expert.

Holmes v. Elliott, 443 So.2d 825, 833 (Miss.1983) (Hawkins, J., specially concurring)

In view of the refinements in the physician’s duty of care articulated in Subsection III(C) above, we hold that a qualified medical expert witness may without more express an opinion regarding the meaning and import of the duty of care articulated in Subsection III(C) above, given the peculiar circumstances of the case. Based on the information reasonably available to the physician, i.e., symptoms, history, test results, results of the doctor’s own physical examination, x-rays, vital signs, etc., a qualified medical expert may express an opinion regarding the conclusions (possible diagnoses or areas for further examination and testing) minimally know*875ledgeable and competent physicians in the same specialty or general field of practice would draw, or actions (not tied to the availability of specialized facilities or equipment not generally available) they would take.9

Before the witness may go further, he must be familiarized with the facilities, resources, services and options available. This may be done in any number of ways. The witness may prior to trial have visited the facilities, etc. He may have sat in the courtroom and listened as other witnesses described the facilities. He may have known and over the years interacted with physicians in the area. There are no doubt many other ways in which this could be done, but, significantly, we should allow the witness to be made familiar with the facilities (and customs) of the medical community in question via a properly predicated and phrased hypothetical question.

Once he has become informed of the facilities, etc. available to the defendant physician, the qualified medical expert witness may express an opinion what the care duty of the defendant physician was10 and whether the acts or omissions of the defendant physician were in compliance with, or fell substantially short of compliance with, that duty.

At this point it is appropriate to note the earnestness with which counsel for Dr. Hil-bun, no doubt purporting to speak on behalf of the medical community generally, begs for protection from the circuit-riding charlatan, the man from out of town with a briefcase.11 The instrument with which they would have us afford this protection is too blunt. Justice Hawkins in this context has aptly observed:

It seems incongruous to me that a medical specialist from the Mayo Clinic, the Ochsner Clinic, the Menninger Foundation, or the Sloan-Kettering Institute could not express opinions within his field of knowledge on what constitutes good medical practice in any court in the United States, or on this entire planet, for that matter.

King v. Murphy, 424 So.2d 547, 552 (Miss.1982) (Hawkins, J., dissenting)

We remind one and all that qualification of a medical expert witness in a malpractice action is no more a mechanical process than any other procedure in our law. Within the limits of the general rule stated above, the trial judge is necessarily called upon to exercise his sound discretion in determining whether a proffered witness is in fact qualified as an expert. See Pharr v. Anderson, 436 So.2d 1357, 1359 (Miss.1983).

Our trial judges are admonished to ascertain that the witness really is an expert in the particular field at issue. Not every M.D. is a qualified expert in every malpractice case. Liberal cross-examination regarding bias, interest and previous experience as an expert in medical malpractice cases should be allowed both on voir dire and when the witness’ testimony is being presented to the jury.

IV. The Rules We Announce Apply Retroactively

It is a general rule that judicially enunciated rules of law are applied retroactively. Legislation applies prospectively only, and we are not thought to be in the business of legislating. Rather, our function is to decide cases justly in accordance with sound legal principles which of necessity must be formulated, articulated and applied consistent with the facts of the case.

*876Keyes v. Guy Bailey Homes, Inc., 439 So.2d 670 (Miss.1983), abolishing the requirement of privity of contract in home construction contracts applied retroactively; Tideway Oil Programs, Inc. v. Serio, 431 So.2d 454 (Miss.1983), providing that punitive damages may be recovered in chancery court was applied retroactively; McDaniel v. State, 356 So.2d 1151 (Miss.1978) overruling cases which allowed voluntary intoxication as a defense to a crime applied retroactively.

The general rule applied universally in this country in federal and state courts is simply put in Jones v. Thigpen, 741 F.2d 805 (5th Cir.1984).

“Judicial decisions ordinarily apply retroactively. See Robinson v. Neil, 409 U.S. 505, 507-08, 93 S.Ct. 876, 877-78, 35 L.Ed.2d 29 (1973). ‘Indeed, a legal system based on precedent has a built-in presumption of retroactivity. Solem v. Stumes, — U.S. —, —, 104 S.Ct. 1338, 1341, 79 L.Ed.2d 579 (1984).” —741 F.2d at 810.

Even Pruett v. City ofRosedale, 421 So.2d 1046 (Miss.1982), was held to apply retroactively to that case.

We note that other states, when shedding the “locality rule”, have done so in a routine manner by simply adopting the new rule and applying it in a normal (retroactive) fashion without fanfare. See Zills v. Brown, 382. So.2d 528, 532 (Ala.1980) applying this new rule retroactively in Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So.2d 254, 256-8 (Ala.1982) and May v. Moore, 424 So.2d 596, 597-601 (Ala.1982); Jenkins v. Parrish, 627 P.2d 533, 537 n. 1 (Utah 1981) (rule to be applied retroactively); Orcutt v. Miller, 95 Nev. 408, 595 P.2d 1191, 1194-95 (1979) (new rule routinely applied); Ardoin v. Hartford Accident & Indemnity Co., 360 So.2d 1331, 1339 n. 22 (La.1978) (overruling Percle v. St. Paul Fire & Marine Insurance Co., 349 ’ So.2d 1289, 1303 (La.Ct.App.1977), which had held abandonment of locality rule to be prospective only); Bruni v. Tatsumi, 46 Ohio St.2d 127, 134-35, 346 N.E.2d 673, 679 (1976) (new rule routinely applied); Kronke v. Danielson, 108 Ariz. 400, 403, 499 P.2d 156, 159 (1972) (same); Wiggins v. Piver, 276 N.C. 134, 141, 171 S.E.2d 393, 397-98 (1970) (same); Naccarato v. Grob, 384 Mich. 248, 253-54, 180 N.W.2d 788, 791 (1970) (same); Brune v. Belinkoff, 354 Mass. 102, 108-09, 235 N.E.2d 793, 798 (1968) (same). Even when acknowledging the issue to be one of first impression, one court applied the new rule routinely with no hint of prospective-only application. Morrison v. MacNamara, 407 A.2d 555, 562 (D.C.1979).

The only case12 we have found in which a court chose to make the abolition of the “locality rule” prospective only is Shier v. Freedman, 58 Wis.2d 269, 283 n. 2, 206 N.W.2d 166, 174 n. 2 (1973). See also, Cukrowski v. Mount Sinai Hospital, Inc., 67 Wis.2d 487, 501-02, 227 N.W.2d 95, 102-03 (1975). The merit in the Wisconsin approach is not apparent.

The retroactivity question with reference to the evidentiary rule — who may qualify as an expert witness — is easy. Physicians no less than others do not engage in primary private activity in reliance on rules of evidence. The refinement we place today on King v. Murphy should be applied in the trial of this case on remand. In any case in which an appeal is pending and in which the issue has been properly preserved, the evidentiary rule announced in King and refined today must be applied. In some instances, we recognize that this will necessitate a new trial. Finally, the rule applies to all cases tried after this date (including, of course, cases where the operative events giving rise to the plaintiffs claim arose prior to this date). The rule may not be applied, however, to disturb judgments which on or prior to this date have become final.

The retroactivity vel non of the rule regarding the physician’s duty of care is *877arguably more difficult. Injustice would necessarily attend our passing judgment on the conduct of a citizen by reference to substantive rules substantially different from those in effect and relied upon by the citizen at the time of his conduct. We recognize that

the confidence of people in their ability to predict the legal consequences of their actions is vitally necessary to facilitate the planning of primary activity....

Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403, 90 S.Ct. 1772, 1789, [26] L.Ed.2d 339, 358 (1970), quoted in Tideway Oil Programs, Inc. v. Serio, 431 So.2d 454, 465 (Miss.1983).

These fundamental premises have more validity in contracts, property and other business or economic contexts than in tort cases. Still, if it could be demonstrated that at the time Dr. Hilbun prescribed the regimen of post-operative care for Mrs. Hall he acted in reliance upon the validity of standards substantially more favorable to him than those we state today, that would weigh heavily in support of non-retroactivity. We do not perceive this to be the case.

What we say today with regard to the standard of care amounts to little more than the law catching up with the way physicians have practiced their profession for years. Moreover, today’s decision was “clearly foreshadowed” by the dictum in Dazet v. Bass, and by King v. Murphy. See Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 30 L.Ed.2d 296, 306 (1971) (foreshadowing removes potential for injustice). We today do little more than fulfill the prophecy of Dazet and smooth some of King’s rough edges. Seen in this context, retroactivity works no unfairness. Conversely, substantial unfairness to Plaintiff Hall would attend our refusal to allow a new trial to be conducted under the rules articulated above.13

V. Disposition Of The Case At Bar

Our task now becomes the reasoned application of these rules of law and their elaboration to the facts — and the procedural posture — of the case at bar.

Beginning with the substantive duty, we recognize that Dr. Hilbun was obligated to Terry 0. Hall to exercise that degree of skill and care which a minimally competent surgeon would have exercised in the same or similar circumstances. Without question, Dr. Hilbun performed the surgery, i.e., the exploratory laporatomy, skillfully and successfully. He remained with Mrs. Hall in the recovery room from 1:35 p.m. until approximately 2:50 p.m. at which time she was alert, communicative, and her vital signs were stable. The problems arise thereafter.

In the first place, we are confident that the first 24 hours post-surgery for any patient present matters within the common knowledge of any surgeon. Subject to variation with the patient’s age, history and general state of health prior to surgery, there are surely a number of commonly known and reasonably to be anticipated complications and danger signals common to all post-operative patients.14 These are matters that surgeons such as Dr. Hilbun are expected to know. More importantly, *878they are matters with respect to which surgeons such as Dr. Hilbun have a duty of care to their patients.

Dr. Hilbun held himself out to the public in general and to Terry 0. Hall in particular as being competent to perform the surgery in question. He thereby acquired an obligation to Mrs. Hall to perform all facets of the surgery with that level of competence and diligence as might be expected of minimally competent surgeons under the -circumstances. The relevant circumstances include those of the particular patient, any objectively sound local medical custom, and the facilities, resources and options available as discussed in Section 111(C)(4) above. He particularly became obligated to direct the post-operative care of Mrs. Hall and to ensure that, with respect to all post-operative dangers or complications reasonably to be anticipated under the circumstances, adequate provision was made for prompt diagnosis and treatment.

A central question of law presented on this appeal is whether there was sufficient evidence presented to the court to under-gird a jury finding that Dr. Hilbun had breached this duty owed to Mrs. Hall. Evidentiary sufficiency in this context, of course, is governed by our familiar standards as described in Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975), and numerous progeny, particularly including, sub silentio, Pharr v. Anderson, 436 So.2d 1357, 1361 (Miss.1983). Considering only the proof admitted at trial, we are forced to agree that the evidence was insufficient as a matter of law and that Dr. Hilbun was entitled to a directed verdict.

As indicated above, Plaintiff Hall sought to overcome this predicament by calling as expert witnesses Drs. Hoerr and Sachs. Our outcome-determinative question, therefore, turns on whether the trial court correctly ruled, as a matter of the law of evidence, that these two witnesses could not, consistent with our law of evidence, testify as expert witnesses.

In view of what we have said in Section III(D) above, it was error to exclude the testimony of these two witnesses in its entirety. Each was clearly competent to testify regarding matters related to the level of knowledge, skill, medical judgment and general competence a surgeon should have brought to bear in prescribing and administering the post-operative regimen for a patient such as Mrs. Hall.

Dr. Hilbun makes much of the fact that his own expert witness, Dr. Donald Dohn, until recently also of Cleveland, Ohio, testified regarding the differences between practice in the Singing River Hospital and in Cleveland, Ohio. Our careful review of the testimony of Dr. Dohn fails to reveal any objectively reasonable basis for concluding that there is a difference in the regimen of post-operative care a minimally competent surgeon should have prescribed for a patient such as Mrs. Hall by reference to her genuine health care needs. The differences discussed by Dr. Dohn relate to differences in medical facilities, services and resources available to the practicing physician—no doubt those resources are greater in Cleveland, Ohio, than in Pas-cagoula, Mississippi. There is no basis for believing that any of these differences, however, would have resulted in any qualitative difference in the regimen of post-operative care prescribed. Put another way, a 37 year old woman such as Mrs. Hall may be expected to respond to an exploratory laporatomy the same whether she receives her surgery and post-operative care in Cleveland, Ohio, or Pascagoula, Mississippi.

Insofar as the record reflects, the only possible basis for Dr. Hilbun’s contention that there are relevant differences between Cleveland, Ohio, and Pascagoula, Mississippi, regards the general quality and competence of nursing personnel. Dr. Hilbun has been less than complimentary of the nursing staff at Singing River Hospital. The record reflects that Dr. Hilbun had been practicing in the Singing River Hospital for approximately 16 years and that he was thoroughly familiar with the capabili*879ties of the nursing staff', and the limitations thereon.

By establishing the inadequacy of the nursing and personnel resources available to him in Pascagoula, Mississippi, Dr. Hilbun only- increases his own responsibility.15 Where a physician is working with medical personnel of known modest competence, his duty of instruction and control is increased. That Dr. Hilbun may have had doubts about the quality of nursing care at the Singing River Hospital lends considerable credibility to the expert testimony of Dr. Hoerr to the effect that far more specific post-operative orders or instructions should have been provided in the case of Mrs. Hall.

Without further ado, and applying to the facts of this case the legal principles stated above, we hold as follows: to the extent that the testimony of Drs. Hoerr and Sachs was excluded because these two physicians lived and had their practices in Cleveland, Ohio, the trial court erred. To the extent that the testimony of each of these physicians was excluded in its entirety because they were supposedly not familiar with the standard of care in Pascagoula, Mississippi, in general or in the Singing River Hospital in particular, the trial court erred. Without the testimony of Drs. Hoerr and Sachs, Plaintiff Hall has no case.. With that testimony, Plaintiff Hall has a fighting chance to survive a motion for a directed verdict. We say this because the trial judge, when he considered and granted defendant’s motion for a directed verdict, was proceeding without reference to the testimony of Drs. Hoerr and Sachs which had been excluded. The core holding of today’s decision is that the trial judge erred when he directed a verdict for defendant without taking into account the testimony of plaintiff’s two out of state experts. That error was prejudicial because the testimony of Drs. Hoerr and Sachs does suggest a basis on which reasonable minds might determine that Dr. Hilbun breached the duty of care he owed to Terry O. Hall. The judgment below is reversed, and this case is remanded for a new trial.

At the new trial, if Plaintiff Hall wishes to call either Dr. Hoerr or Dr. Sachs, each may be permitted to testify and be cross-examined consistent with the legal principles stated in Sections III and IY above. More specifically and without limitation, each may describe and elaborate upon such medical knowledge as is commonly possessed or is reasonably available to minimally competent surgeons throughout the country. Each may be permitted to express an opinion as to whether the quality of post-operative care rendered Mrs. Hall by Dr. Hilbun conformed to objectively ascertained minimally acceptable levels. In expressing such an opinion, each should consider such legitimate differences of opinion as may exist within the medical profession regarding the regimen of postoperative care that ought to have been provided a patient such as Mrs. Hall. Further, to the extent that, in order to express such an opinion, consideration need be given to the facilities, equipment, personnel and general medical resources available, Drs. Hoerr and Sachs must be fully apprised of and required to assume these prior to answering.

*880Nothing said here should be taken as an expression of opinion on our part that Dr. Hilbun has committed malpractice. All that today’s decision suggests on this point is that, with the expert testimony of Drs. Hoerr and Sachs added to his case, plaintiff may be able to present a jury question; that is, plaintiff may on retrial be able to make out a case so that, when the evidence and all reasonable inferences therefrom are viewed in the light most favorable to him, the trial judge may be unable to say that no reasonable juror could find for him.

The trial judge is not by today’s decision required to deny defendant’s motion for a directed verdict made at the end of plaintiff’s case on retrial. Rather, that motion should be considered in the light of the evidence then before the court, measured by the substantive standards articulated in Sections 111(c)(3) and (4) above, and viewed favorably to plaintiff under our familiar rules. See Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975); Pharr v. Anderson, 436 So.2d 1357, 1361 (Miss.1983). When this is done, we are confident reason and fairness will mark the outcome.

PETITION FOR REHEARING GRANTED; REVERSED AND REMANDED FOR A NEW TRIAL.

DAN M. LEE, PRATHER, SULLIVAN and ANDERSON, JJ., concur.

HAWKINS, J., specially concurs.

PATTERSON, C.J., and ROY NOBLE LEE, P.J., concur in part and dissent in part.

WALKER, P.J., dissents.

HAWKINS, Justice,

specially concurring:

I concur in the decision reached by the majority.

I am grateful to Justice Robertson for his recitation of the facts, as well as the abundant authorities he has furnished on the locality rule.

Thanks should also be expressed for the graveside eulogy he has delivered to King v. Murphy, 424 So.2d 547 (Miss.1982).

Hopefully, the Bench and Bar now has the indubitably clear expression of what I attempted to state in the King v. Murphy dissent.

PATTERSON, Chief Justice,

dissenting in part; concurring in part:

I was the author of the original opinion in this cause and concluded the trial court correctly followed our rule of evidence established in Dazet v. Bass, 254 So.2d 183 (Miss.1971). Therefore, believing the court had not committed error by following precedent, I thought an affirmance was in order. It would appear from the record, however, that the procedures followed, although correct, possibly led to an unusual result in that a full trial on the merits did not follow. It also appears, to me at least, that although authorized by our procedures the dismissal of Nurses XYZ from the suit by the plaintiff left the defendant doctor the prime target for liability and thus damages when from the record before us his negligence, if any, was slight by comparison to that of Nurses XYZ. To explain, it need be recalled that despite great fluctuation of the patients’s vital signs, the doctor was simply not notified of such until called the next morning at the insistence of the patient’s husband. He promptly responded but unfortunately at a time too late to save his patient.

I dissent because I think the trial judge and the attorneys were entitled to rely on our law as it existed, through precedent, at the time of the trial.

Presently in the minority, I concur with the majority that the locality rule of evidence in malpractice cases should be overturned. The rule was greatly expanded in King v. Murphy, 424 So.2d 547 (Miss.1982). I would now forthrightly hold that we adopt the National Standard of Evidence which permits a medical expert to testify once his qualifications have been established, just as other expert witnesses are presently qualified to give testimony.

WALKER, P.J., joins the dissenting part.

*881ROY NOBLE LEE, Presiding Justice,

concurring in part and dissenting in part:

CONCURRING

I think that sufficient evidence was offered by the appellant to withstand á motion for directed verdict and, therefore, I concur with the majority in reversing the case for a full trial on its merits, though not for the reason expressed therein, and I here adopt my dissenting opinion to the original majority opinion, following:

The exploratory laparotomy, for obstruction of the small bowel, performed on 37-year-old Terry 0. Hall, wife of Glenn Hall, was a serious operation, and it required the services of a trained, skillful and experienced surgeon. Post-operative care for the patient was just as important as the surgery, and required trained, skillful and experienced administering.

Dr. Hilbun performed the first phase, viz, the surgery, competently, skillfully, and successfully. He remained with Mrs. Hall in the recovery room from 1:35 p.m. until approximately 2:50 p.m., at which time she was alert, communicative, and her vital signs were stable. The doctor miserably failed the second phase. He did not see her, communicate with her, or inquire about her from 2:50 p.m. until the following morning at approximately 5:00. At that time, she was dead.

Dr. Stanley O. Hoerr and Dr. David Sachs, who were scholarly, highly-trained and eminent surgeons from Cleveland, Ohio, and whose qualifications were well recognized in their field, were called as witnesses for the appellant. Their testimony was heard outside the presence of the jury and was developed in full. At the conclusion, the lower court held that they were not qualified to testify under the locality rule. (Now similar locality rule). Parts of Dr. Hoerr’s testimony which, in my opinion, is pertinent to the question here, follows:

A. My opinion is that she did not receive the type of care that she should have received from the general surgical specialist and that he was negligent in not following this patient; contacting, checking on the condition of his patient sometime in the evening of May 20th. It is important in the post-operative care of patients to remember that very serious complications can follow abdominal operations in particular in the first few hours after a surgical procedure. And this can be inward bleeding; it can be an explosive development in an infection; or it can be the development of a serious pulmonary complication, as it was in this patient. As a result of not seeing her or making an effort to find out about her condition, it is my opinion that he lost the opportunity to diagnose a condition, which in all probability could have been diagnosed at the time by an experienced general surgeon; one with expertise in thoracic surgery. And then appropriate treatment could have been undertaken to abort the complications and save her life.

There are different ways that a surgeon can keep track of his patient; follow her as the expression goes, besides a bedside visit which is the best way and which need not be very long at all in which the vital signs are checked over. The surgeon gets a general impression of what’s going on. He can delegate this responsibility to a competent physician, who need not be a surgeon but could be a knowledgeable family physician or general practitioner. He could call in and ask to speak to the Registered Nurse in charge of the patient and determine through her what the vital signs are, and if she is an experienced Registered Nurse what her evaluation of the patient is. From my review of the record, none of these things took place and there is no effort as far as I can see that Dr. Hilbun made any effort to find out what was going on with this patient during that period of time. I might say or add an additional belief that I felt that the nursing responsibility which should have been exercised was not exercised, particularly at the 4:00 a.m. level when *882the pulse rate was recorded at 140 per minute without any effort as far as I can see to have any physician see the patient or to get in touch with the operating surgeon and so on.

There is an additional thing that Dr. Hilbun could have done if he felt that the nursing services might be spotty; sometimes good, sometimes bad. This is commonly done in Columbus, Ohio, in Ashta-bula, Pascagoula, etcetera. He could put limits on the degree in which the vital signs can vary, expressing the order that he should be called if they exceeded that. Examples would be: Call-me if the pulse rate goes over 110; call me if the temperature exceeds 101; call me if the blood pressure drops below 100. There is a simple way of spelling out for the nursing services what the limits of discretion belong to them and the point at which the doctor should be called.

Q. Dr. Hoerr, the post-operative orders in the records that you have — I believe they are the yellow sheets toward the front. (Looking for order) Now, I have directed your attention to the postoperative orders of Dr. Hilbun, which have previously been identified by him as that. Have you had an opportunity to review the post-operative orders?

A. Yes, I have.

Q. Were there any orders in there at any place, or any other place in the records for that matter, in which Dr. Hilbun directed anyone to contact him if there were certain changes in vital signs?

A. Not that I could find. The answer is no. I couldn’t see any there. (Emphasis added)

The doctor did not place any orders on the chart for the nurses to call him in the event of a change in the vital signs of Mrs. Hall. He normally made afternoon rounds between 4 and 5 p.m., but didn’t recall whether he went by to see her before going home. The doctor was on call at the hospital that weekend for anything which might come up. Subsequent to the operation and previous to Mrs. Hall’s death, he was called about one other person on the same ward, one door down, twice during the night. He made no inquiry concerning Mrs. Hall, nor did he see or communicate with her.

Glenn Hall, the husband, remained in the hospital room with his wife all night. He was concerned with the breathing, restlessness, pain and color of his wife. He told the nurses what he observed several times and expressed his concern, and was assured that those symptoms were normal and routine. Finally, he realized that his wife was dying, he screamed for the nurses, and then he called Dr. Hilbun, who came immediately to the hospital, only to find Mrs. Hall had expired.

I think that the lower court was correct in holding that Dr. Hoerr and Dr. Sachs were not qualified to testify to certain facts appearing in the record because they were not familiar with the standard of care exercised at Singing River Hospital. However, other parts of their testimony which did not relate to the standard of care were admissible, including that set forth hereinabove. Such evidence goes to knowledge, training, skill and general negligence, rather than to the standard of care exercised in the locality. In Lewis v. Soriano, 374 So.2d 829 (Miss.1979), a doctor, who had no training and skill as an orthopedic surgeon, attempted to insert a pin in a person’s fractured ankle. The standard of care was not involved, but the competence or incompetence of the physician. The same principle applies where the physician or surgeon is competent but negligently fails his competence. The general rule of negligence applies.

In Pharr v. Anderson, 436 So.2d 1357 (Miss.1983), a majority of the Court held that Dr. Pharr was liable when he went to the emergency room to check his patients, including Mrs. Anderson, found that she had been discharged by another attending physician, and did not examine her chart or attempt to obtain her return to the hospital for further treatment. The writer here dissented in that case expressing the view that Dr. Pharr was not liable, since the *883patient had been discharged by another attending physician, whose name appeared on the hospital chart as such, and that there was no legal duty upon him to further examine the chart or to attempt her return to the hospital.

In the present case, in my opinion, the highly-trained, experienced, knowledgeable surgeon, Dr. Hilbun, was under a legal duty to closely cheek with and follow his patient for those complications indicated by Dr. Hoerr, and which he knew might develop. That duty is beside the standard of care, and certainly presents a question for jury determination as to whether or not there was negligence and, if so, whether such negligence was a proximate or contributing cause to Mrs. Hall’s death. In my view, the following items of evidence were sufficient to withstand the motion for directed verdict:

(1) All the medical records pertaining to Mrs. Hall were introduced in evidence and were interpreted and discussed by competent physicians. That evidence and inferences were for the consideration of the jury-

(2) Testimony of Dr. Hoerr, corroborated by Dr. Sachs, mentioned and set out herein-above, should not have been prohibited by the locality rule and the jury should have been permitted to hear and consider same.

(3) An autopsy was performed on Mrs. Hall and the report indicated, in addition to the immediate cause of death, that a sponge was left in the lower abdomen of the patient. Such constituted negligence.1 The declaration charged, and the proof showed, that Dr. Hilbun left the sponge in the abdomen of Mrs. Hall; that she suffered pain; and recovery was asked for that pain and suffering. Such evidence with all inferences, presented a bona fide claim for the jury’s consideration.

(4) Testimony of Glenn Hall, who was in the hospital room with his wife from the time she returned from the recovery room until her death, indicating what he observed, what her condition was, and how it deteriorated, with all inferences, was for the jury’s consideration.

In Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975), the Court quoted and restated the principle of law applying to motions for directed verdicts, as was set out in General Tire & Rubber Co. v. Darnell, 221 So.2d 104 (Miss.1969).

“The established rule is that when the court considers whether the defendant is entitled to a judgment as a matter of law, the court should consider the evidence in the light most favorable to plaintiff, disregard any evidence on the part of defendant in conflict with that favorable to plaintiff, and if the evidence and reasonable inferences to be drawn therefrom would support a verdict for plaintiff, the jury verdict should not be disturbed. 221 So.2d at 105.’:

Applying that rule to the competent evidence, both admitted and excluded in this case, in my opinion, appellant made out a prima facie case and an issue for the jury at the conclusion of his case. I think that the lower court erred in sustaining the motion for a directed verdict and I would reverse and remand for a full trial on the merits.

DISSENTING

I do not think it is necessary to enlarge upon and rework King v. Murphy, 424 So.2d 547 (Miss.1982), and, therefore, I dissent from that part of the majority opinion.

In King, we extended and expanded the locality rule and stated the present rule for standard of care in the following language:

We are of the opinion that the locality or neighborhood rule in the State of Mississippi should not be abolished, but it should be extended and expanded. Therefore, we hold that the standard of care by which the acts or omissions of physicians, surgeons or specialists are to be judged shall be that degree of care, skill and diligence practiced by a reasonably careful, skillful, diligent and prudent practitioner in such field of practice *884or specialty in this state, and for a reasonable distance adjacent to state boundaries. An expert witness who is knowledgeable of, and familiar with, the statewide standard of care shall not have his testimony excluded on the ground that he does not practice in this state.

424 So.2d at 550.

In my opinion, the King standard is clearly stated and is a good rule which protects all party litigants in introducing medical testimony. Any astute and skillful attorney can qualify a physician who is truly an expert in his field.2

King has been reported slightly over two years. Cases coming before us now, tried under King, indicate that attorneys had no difficulty in qualifying medical experts who are, in fact, experts. Although I do not disagree with a great deal of the majority opinion in discussing King, I think that the King decision is good for Mississippi and should not be tampered with.

DAN M. LEE, J., joins the concurring portion of this opinion.

WALKER, P.J., joins the dissenting portion.

SELYA, Circuit Judge.

This appeal requires us to interpret, for the first time, the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd (1988 & Supp. V 1993).1 After scrutinizing the record and dovetailing the facts with the statutory scheme, we affirm a $700,000 jury verdict in favor of the heirs and survivors of Carmen Gloria Gonzalez Figueroa (Ms. Gonzalez) against defendant-appellant Hospital San Francisco (HSF or the Hospital).

1. THE FACTS

We are guided through the thicket of conflicting testimony and the chasmal gaps in the direct evidence by the rule that, when the losing party protests the sufficiency of the evidence, the court of appeals must take both the facts and the reasonable inferences therefrom in the light most hospitable to the jury’s verdict. See Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 716 (1st Cir.1994); Wagenmann v. Adams, 829 F.2d 196, 200 (1st Cir.1987).

According to her son, Angel Correa, Ms. Gonzalez, a sixty-five-year-old widow, awoke on the morning of September 6,1991 “feeling real bad,” and experiencing “chills, cold sweat, dizziness, [and] chest pains.” She requested that Angel take her to the emergency room at HSF (where she had been treated previously). She arrived there no later than 1:00 p.m.

The evidence is conflicted as to whom she saw and what that person was told about her condition. Angel testified that he implored the receptionist to have someone “take care of my mother, because she feels sick and has chest pains.” The Hospital disagrees, maintaining that its personnel were told only that Ms. Gonzalez felt dizzy and nauseated. In any event, a Hospital employee assigned the patient a number (forty-seven), told her to bide her time, and cheeked her medical insurance card.2 After waiting approximately *1189one hour, Angel called his sister, Esther Correa, and asked her to relieve him. Esther arrived some fifteen minutes later and Angel left the premises. At that very moment (roughly 2:15 p.m.), he heard an attendant calling patient number twenty-four for treatment.

Now accompanied by her daughter, Ms. Gonzalez maintained her unproductive vigil for an additional forty-five to seventy-five minutes. The Hospital staff continued blithely to ignore her. Weary of waiting, the two women drove to the office of Dr. Acacia Rojas Davis (Dr. Rojas), the director of Hospmed, arriving there between 3:00 and 3:30 p.m. According to Dr. Rojas, a nurse called from HSF to advise her that the patient would be coming to Hospmed for treatment. Dr. Rojas said that this conversation probably occurred earlier that day (perhaps around 1:00 p.m.), a datum suggesting that HSF tried to shunt Ms. Gonzalez to Hospmed as soon as it scrutinized her insurance card.

Ms. Gonzalez informed Dr. Rojas that she was nauseated and had taken a double dose of her high blood pressure medication. Her blood pressure was very low (90/60), and, when she began vomiting, the physician immediately started intravenous infusions of fluids. She also dispensed medicine to control the emesis. Despite these ministrations, Ms. Gonzalez’s condition steadily deteriorated. Dr. Rojas had to resuscitate her soon after her arrival. The doctor then attempted to transfer her to the Hato Rey Community Hospital, but could not commandeer an ambulance. As Dr. Rojas began preparations to transport Ms. Gonzalez by van, the patient expired. Her death, which occurred at around 4:30 p.m., was attributed to hypovo-lemic shock.

II. THE PROCEEDINGS BELOW

The plaintiffs — Ms. Gonzalez’s three adult children and four of her grandchildren (the progeny of her late son, Felix Correa, who had predeceased her) — brought suit against the Hospital in the United States District Court for the District of Puerto Rico.3 They alleged two violations of EMTALA — inappropriate screening and improper transfer — and a pendent claim of medical malpractice under local law. Following a trial, the plaintiffs’ case went to the jury on the two theories of EMTALA liability.4 The jury returned a series of special written findings, Fed. R.Civ.P. 49(a), assessed $200,000 in damages on the decedent’s account (payable to the heirs), and assessed $500,000 in damages for the pain, suffering, and mental anguish experienced by the survivors — $100,000 apiece for the three children (Angel, Esther, and Gloria), and $50,000 apiece for the four grandchildren (Glendalis, Glorimar, Angelis, and Sarai). The district court denied the Hospital’s post-trial motions for judgment as a matter of law, a new trial, and remission of damages. This appeal ensued.

III. THE STATUTORY SCHEME

We delineate EMTALA’s requirements in order to give definition to the statutory cause of action and place some of its nuances into perspective.

As health-care costs spiralled upward and third-party payments assumed increased importance, Congress became concerned “about the increasing number of reports that hospital emergency rooms are refusing to accept or treat patients with emergency conditions if the patient does not have medical insurance.” H.R.Rep. No. 241(1), 99th Cong., 1st Sess. 27 (1986), reprinted in 1986 U.S.C.C.A.N. 42, 605. Congress enacted EMTALA to allay this concern. Needing a carrot to make health-care providers more receptive to the stick, Congress simultaneously amended the Social Security Act, conditioning hospitals’ continued participation in the federal Medicare program — a lucrative source of institutional revenue — on acceptance of the duties imposed by the new *1190law. See 42 U.S.C. § 1395dd(a-b), (e)(2); see also Abercrombie v. Osteopathic Hosp. Founders Ass’n, 950 F.2d 676, 680 (10th Cir.1991); Brooker v. Desert Hosp. Corp., 947 F.2d 412, 414 (9th Cir.1991).

We have set out the portions of the statute that are most germane to this appeal in an appendix. For purposes of patients such as Ms. Gonzalez, EMTALA has two linchpin provisions. First, it requires that a participating hospital afford an appropriate medical screening to all persons who come to its emergency room seeking medical assistance. See 42 U.S.C. § 1395dd(a). Second, it requires that, if an emergency medical condition exists, the participating hospital must render the services that are necessary to stabilize the patient’s condition, see id. § 1395dd(b)(l)(A), unless transferring the patient to another facility is medically indicated and can be accomplished with relative safety, see id. § 1395dd(b)(l)(B), (e)(1). To add bite to its provisions, EMTALA establishes monetary penalties for noncompliance, see id. § 1395dd(d)(l), and authorizes private rights of action against those who transgress its mandates, see id. § 1395dd(d)(2).

To establish an EMTALA violation, a plaintiff must show that (1) the hospital is a participating hospital, covered by EMTALA, that operates an emergency department (or an equivalent treatment facility); (2) the patient arrived at the facility seeking treatment; and (3) the hospital either (a) did not afford the patient an appropriate screening in order to determine if she had an emergency medical condition, or (b) bade farewell to the patient (whether by turning her away, discharging her, or improvidently transferring her) without first stabilizing the emergency medical condition. See Miller v. Medical Ctr. of S.W. La., 22 F.3d 626, 628 (5th Cir.1994); Stevison v. Enid Health Sys., Inc., 920 F.2d 710, 712 (10th Cir.1990).

HSF attempts to read into section 1395dd(a) an additional requirement: that the patient show that she in fact suffered from an emergency medical condition when she arrived at the emergency room. But EMTALA imposes no such requirement. The statute by its terms directs a participating hospital to provide an appropriate screening to all who come to its emergency department. Thus, to prove a violation of EMTALA’s screening provisions, a plaintiff need not prove that she actually suffered from an emergency medical condition when she first came through the portals of the defendant’s facility; the failure appropriately to screen, by itself, is sufficient to ground liability as long as the other elements of the cause of action are met.5

IV. ANALYSIS

HSF assigns error in no fewer than eight iterations. It debunks the sufficiency of the evidence in five respects. It then hypothesizes that, even if the evidence on these points can withstand an instructed verdict, it is so anemic that the district court should have repudiated the jury’s findings on liability and ordered a new trial. The climax of the Hospital’s asseverational array denigrates the award of damages in two respects. After careful perscrutation of both the record and the rich variety of challenges marshalled by HSF, we affirm.

A. Sufficiency of the Evidence.

The Hospital’s multi-pronged attack calls into play varying standards of appellate review. The first five claims of error all in*1191volve the sufficiency of the evidence, and, hence, are reviewed under a familiar set of rules.

The district court’s denial of a motion for judgment as a matter of law poses a question of law and, therefore, this court’s review of such a ruling is plenary. See Gibson v. City of Cranston, 37 F.3d 731, 735 (1st Cir.1994). In addressing such issues on appeal, we must approach the evidence from a coign of vantage identical to that employed by the district court in the first instance. See Rolon-Alvarado v. Municipality of San Juan, 1 F.3d 74, 77 (1st Cir.1993). This dictates that we take the record in the light most flattering to the nonmoving party, without probing the veracity of the witnesses, resolving conflicts in the testimony, or assaying the weight of the evidence. See Gibson, 37 F.3d at 735; Wagenmann, 829 F.2d at 200. We “may reverse the denial of such a motion only if reasonable persons could not have reached the conclusion that the jury embraced.” Sanchez, 37 F.3d at 716.

1. EMTALA Coverage. The Hospital starts its series of sufficiency sorties by solemnly stating that the survivors stumbled in failing to show that it is subject to EMTALA’s suzerainty. We need not tarry. HSF tacitly concedes that, in general, federal courts have jurisdiction over EMTALA claims, see Thornton v. Southwest Detroit Hosp., 895 F.2d 1131, 1133 (6th Cir.1990), but argues that the plaintiffs did not prove a requisite predicate fact: that HSF had accepted the federal government’s carrot and agreed to come under EMTALA.6 This argument has the shrill ring of desperation.

The plaintiffs introduced into evidence, without objection, HSF’s policy statement outlining for its employees and associates how the Hospital intended to ensure compliance with EMTALA in its emergency room. The Hospital solidified this proffer when, during the defense case, its health services administrator testified that he had dutifully instructed his staff regarding the fine points of EMTALA compliance. Evidence admitted without limitation can be used by the jury on any issue in the case. See, e.g., United States v. Castro-Lara, 970 F.2d 976, 981 (1st Cir.1992), cert. denied, — U.S. —, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993). Here, the policy statement and the executive’s testimony, without more, formed a sturdy basis on which the jury could build an eminently reasonable inference that the Hospital considered itself to be — and was— covered by EMTALA.

HSF strives to topple this edifice, contending that the policy statement constituted inadmissible hearsay and that the plaintiffs did not lay a proper foundation for the document’s introduction. But in the absence of plain error — -and we discern none here — these objections, voiced for the first time on appeal, are deemed to have been waived. See Suarez-Matos v. Ashford Presbyterian Community Hosp., Inc., 4 F.3d 47, 50 (1st Cir.1993); Freeman v. Package Mach. Co., 865 F.2d 1331, 1336 (1st Cir.1988); see also Fed.R.Evid. 103. Hence, the jury had a rational basis on which to conclude that HSF is among the ninety-nine percent of American hospitals covered by EMTALA.

2. Failure to Provide Appropriate Screening. Three of the Hospital’s remaining four sufficiency-of-the-evidence claims are inextricably intertwined. These three claims are designed to illustrate the purported lack of any foundation for a finding that HSF failed to provide Ms. Gonzalez with an appropriate screening upon her appearance at the emergency room. The final sufficien*1192cy claim is closely related to the first three initiatives. In it, HSF posits that, as long as a hospital is not motivated by crass economic considerations, any failure appropriately to screen does not run afoul of EMTALA. These importunings lack merit.7

a.

We begin this analytic segment by laying a straw man to rest. The Hospital asserts that it had no obligation to screen because Ms. Gonzalez did not have an emergency medical condition when she reported to its facility. This theory of defense is doubly flawed. For one thing, EMTALA requires participating hospitals to provide appropriate screening to all who enter the hospitals’ emergency departments, whether or not they are in the throes of a medical emergency when they arrive. See supra note 5 and accompanying text. For another thing, the record does not compel a conclusion that the decedent’s emergency condition developed only after she consulted Dr. Rojas.

Angel Correa testified that he told HSF’s receptionist that his mother was experiencing chest pains, and HSF concedes that a patient of Ms. Gonzalez’s age who suffered from chest pains would be regarded as having an emergency medical condition. Yet the Hospital asks us to ignore this evidence in deference to Dr. Rojas’s testimony that Ms. Gonzalez did not develop chest pains until some time after she arrived at Hospmed. There is no principled way in which we can accommodate HSF’s request. Credibility choices are generally for the jury, not for the court of appeals. See Cook v. Rhode Island Dep’t of Mental Health, Retardation, and Hosps., 10 F.3d 17, 21 (1st Cir.1993). What is more, Dr. Rojas’s testimony does not rule out a finding that Ms. Gonzalez exhibited an emergency medical condition when she arrived at HSF. The chest pains might well have spurted and later subsided, or, even if Ms. Gonzalez only complained of nausea and dizziness, that symptomatology (as Dr. Rojas explained) might well herald the onset of an emergency medical condition in the case of a hypertensive diabetic (such as Ms. Gonzalez).

b.

We next assess the Hospital’s insistence that it gave Ms. Gonzalez the same (suitable) screening provided to all patients. EMTA-LA requires an appropriate medical screening, but does not explain what constitutes one. The adjectival phrase is not self-defining. See Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266, 271 (6th Cir.1990) (“ ‘Appropriate’ is one of the most wonderful weasel words in the dictionary, and a great aid to the resolution of disputed issues in the drafting of legislation. Who, after all, can be found to stand up for ‘inappropriate’ treatment or actions of any sort?”). In the last analysis, appropriateness, like nature, is “a mutable cloud which is always and never the same.” Ralph Waldo Emerson, Essays: First Series (1841).

Be that as it may, the courts have achieved a consensus on a method of assessing the appropriateness of a medical examination in the EMTALA context. A hospital fulfills its statutory duty to screen patients in its emergency room if it provides for a screening examination reasonably calculated to identify critical medical conditions that may be afflicting symptomatic patients and provides that level of screening uniformly to all those who present substantially similar complaints. See Baber v. Hospital Corp. of Am., 977 F.2d 872, 879 (4th Cir.1992); Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1041 (D.C.Cir.1991). The essence of this requirement is that there be some screening procedure, and that it be administered even-handedly.

We add a caveat: EMTALA does not create a cause of action for medical malpractice. See Gatewood, 933 F.2d at 1041. Therefore, a refusal to follow regular screening procedures in a particular instance contravenes the statute, see Baber, 977 F.2d at 879, but faulty screening, in a particular case, as opposed to disparate screening or refusing *1193to screen at all, does not contravene the statute. See Brooks v. Maryland Gen. Hosp., 996 F.2d 708, 711 (4th Cir.1993). In this case, HSF’s delay in attending to the patient was so egregious and lacking in justification as to amount to an effective denial of a screening examination. Thus, we need not decide whether mere negligence in failing to expedite screening would itself violate the federal statute.

To illustrate our point, it should be recalled that HSF prescribed internal procedures which set the parameters for an appropriate screening. HSF’s rules, as explicated in its policy statement, required its emergency room personnel, inter alia, promptly to take the vital signs of every patient who visited the facility, to make a written record of all such visits, to treat patients suffering from chest pains as critical cases, and to refer all critical cases to an in-house physician immediately. From the evidence adduced at trial, especially Angel Correa’s recollections and the Hospital’s utter inability to produce any records anent Ms. Gonzalez’s visit, the jury reasonably could have inferred that the Hospital did not measure up to the parameters it had established, and that the decedent was denied the screening (monitoring of vital signs, compilation of a written chart, immediate referral to an in-house physician) that HSF customarily afforded to persons complaining of chest pains.

That ends the matter. Bearing in mind that, under EMTALA § 1395dd(a), the same screening examination must be made available to all similarly situated patients, see Brooks, 996 F.2d at 710-11; Baber, 977 F.2d at 881, the jury’s finding that HSF denied Ms. Gonzalez an appropriate screening examination is unimpugnable.

c.

In an allied vein, the Hospital contends that it neither denied Ms. Gonzalez an initial screening nor refused her essential treatment. Its point is that it gave the patient a number, and would have ministered to her had she waited. This contention is spurious.

First, according to Dr. Rojas, HSF referred Ms. Gonzalez to Hospmed. If the jury believed the physician’s testimony— and we note, as an aside, that HSF called Dr. Rojas as its witness — it could well have found that HSF never intended to treat the decedent, or, at the least, was itself responsible for truncating her wait. Second, we think that regardless of motive, a complete failure to attend a patient who presents a condition that practically everyone knows may indicate an immediate and acute threat to life can constitute a denial of an appropriate medical screening examination under section 1395dd(a). Much depends upon circumstances; we recognize that an emergency room cannot serve everyone simultaneously. But we agree with the court below that the jury could rationally conclude, absent any explanation or mitigating circumstances, that the Hospital’s inaction here amounted to a deliberate denial of screening. EMTALA should be read to proscribe both actual and constructive dumping of patients.

d.

HSF maintains that depriving a patient of an appropriate screening, in and of itself, will not support an EMTALA claim. It suggests that a hospital can be liable for transgressing the statute only if economic concerns, such as the suspicion that the patient will be unable adequately to pay her way, drive the hospital’s actions. Since Ms. Gonzalez had insurance that permitted her hospital visit if an emergency existed, its thesis continues, its handling of her case could not have been motivated by concerns about her ability to pay.8 As phrased, this contention raises a question of law, engendering de novo review. See Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 147 (1st Cir.1995).

Every court of appeals that has considered this issue has concluded that a desire to shirk the burden of uncompensated care is *1194not a necessary element of a cause of action under EMTALA. See, e.g., Power v. Arlington Hosp. Ass’n, 42 F.3d 851, 857 (4th Cir.1994); Collins v. DePaul Hosp., 963 F.2d 303, 308 (10th Cir.1992); Gatewood, 933 F.2d at 1040.9 We think that these cases are correctly decided, and that EMTALA does not impose a motive requirement. The decision on which the Hospital relies, Nichols v. Estabrook, 741 F.Supp. 325 (D.N.H.1989), did not involve failure to screen, but merely a misdiagnosis. We hold, therefore, that EM-TALA, by its terms, covers all patients who come to a hospital’s emergency department, and requires that they be appropriately screened, regardless of insurance status or ability to pay. See 42 U.S.C. § 1395dd(a).

B. New Trial.

We turn now to the Hospital’s complaint that the lower court erred in declining to honor its motion for an unconditional new trial. Our reexamination of this ruling is extremely circumscribed. Principally because the trial judge saw and heard the witnesses in the raw, his refusal to uproot a jury verdict may only be reversed for abuse of discretion. See Quinones-Pacheco v. American Airlines, Inc., 979 F.2d 1, 3 (1st Cir.1992); Veranda Beach Club Ltd. Partnership v. Western Sur. Co., 936 F.2d 1364, 1384 (1st Cir.1991). This means, in effect, that an appellate court may set aside such a ruling only if it determines that “the verdict is against the demonstrable weight of the credible evidence or results in a blatant miscarriage of justice.” Sanchez, 37 F.3d at 717.

Refined to bare essence, HSF’s claim is that, even if the plaintiffs introduced enough proof to withstand judgment as a matter of law, the verdict defied the weight of the trustworthy evidence. In support, the Hospital reiterates the points previously discussed, terming the evidence asthenic as to HSF’s status under EMTALA and as to its purported violations of the law.

We will not repastinate the ground that we ploughed earlier in this opinion. The evidence regarding the relationship of EMTA-LA to HSF, see supra Part IV(A)(1), strikes us as rather persuasive, especially since HSF — which could have supplied a foolproof answer from its own records — offered nothing to suggest that it did not welcome Medicare patients. As to the other points, see supra Part IV(A)(2), the jury heard testimony from which it could have concluded that Ms. Gonzalez went to the Hospital in critical condition and received only a high number and a cold shoulder. Angel Correa’s credibility emerged relatively unscathed from cross-examination; we cannot fault the jury either for crediting his recollection or for concluding that the Hospital denied Ms. Gonzalez any vestige of an appropriate screening.

To be sure, the evidence in this case is not particularly precise. But facts at trial, as in life, do not always appear in black and white. Juries and judges frequently must distinguish between manifold shades of gray. The limited review that we can conduct convinces us that the grays predominate here, that the jury’s finding of EMTALA liability is within the spectrum of acceptable outcomes, and that the trial judge did not abuse his discretion in refusing to paint over the jury’s collective judgment. No more is exigible. See Freeman, 865 F.2d at 1333-34 (“The mere fact that a contrary verdict may have been equally- — or even more easily— supportable furnishes no cognizable ground for granting a new trial. If the weight of the evidence is not grotesquely lopsided, it is irrelevant that the judge, were he sitting jury-waived, would likely have found the other way.”).

C. Damages.

On the final leg of our journey, we traverse the Hospital’s two challenges to the award of damages. In substance, HSF maintains (a) *1195that the plaintiffs may recover under EMTA-LA only those damages stemming from the decedent’s pain and suffering, and (b) that in all events, the jury exhibited excessive generosity. These challenges must be considered separately for they evoke differing legal principles and standards of review.

1. Recoverable Damages. Since questions such as whether a statute authorizes damages in particular instances or in favor of particular parties are quintessentially legal in nature, we afford de novo review. See EEOC v. Bank of Billings, 758 F.2d 397, 401 (9th Cir.), cert. denied, 474 U.S. 902, 106 S.Ct. 228, 88 L.Ed.2d 228 (1985); see also Strickland v. Commissioner, Me. Dep’t of Human Servs., 48 F.3d 12, 16 (1st Cir.1995). HSF’s claim that the plaintiffs cannot recover damages under EMTALA for their own pain, suffering, and anguish falls into this category. Undertaking de novo review, we conclude that this claim is voiced too late and augurs too little.

The chronology of the case speaks volumes about the lack of timeliness. HSF first had the opportunity to assert this defense in its answer to the plaintiffs’ complaint, but did not do so. In its submissions ancillary to both the initial scheduling conference and the pretrial conference, see Fed. R.Civ.P. 16, HSF likewise omitted any reference to the defense. The latter omission is especially significant. The pretrial conference is an important event in the life of a litigated case. It is designed to assist the court in “formulati[ng] ... the issues, including the elimination of frivolous claims or defenses.” Fed.R.Civ.P. 16(c)(1). Along the same line, the pretrial order is intended to shape the contours of the ensuing trial by setting forth the legal theories upon which the parties intend to rely. See D.P.R.Loc.R. 314.3(E). Here, HSF undermined these mechanisms. It failed to assert the defense at the pretrial conference, and, consequently, the pretrial order, signed by all counsel and entered by the district court, made no mention of any contention that EMTALA barred recovery for the heirs’ anguish and suffering.

The Hospital’s neglect continued up to, and through, the trial proper. In its trial brief, HSF enumerated only three legal issues to be considered at trial. None of these dealt with the question of whether persons other than patients (or those suing in a patient’s behalf) could recover damages under EMTA-LA. At the close of the plaintiffs’ case, HSF unsuccessfully moved for judgment as a matter of law, see Fed.R.Civ.P. 50(a), but without calling the court’s attention to the alleged impropriety of compensating the plaintiffs for their own pain and suffering. At the close of all the evidence, the Hospital renewed its Rule 50(a) motion, but did not add any new grounds. To cinch matters, the Hospital eschewed any objection to the trial court’s inclusion of the plaintiffs’ claims for their own pain, suffering, and mental anguish in the verdict forms and the jury instructions. This was a waiver, pure and simple. See Fed. R.Civ.P. 49(a), 51; see also Putnam Resources v. Pateman, 958 F.2d 448, 456 (1st Cir.1992) (“Silence after instructions, including instructions on the form of the verdict to be returned by the jury, typically constitutes a waiver of any objections.”).

Based on this somber record of inattention, we hold that HSF forfeited the theory of defense that it now espouses. In reaching this conclusion, we give special weight to the Hospital’s boycott of the final pretrial order. That order is intended to “control the subsequent course of the action,” and can be modified only “to prevent manifest injustice.” Fed.R.Civ.P. 16(e). An appellate court should not lightly relieve a litigant from the condign consequences of its failure to list a theory of defense at that critical stage of the proceedings. See, e.g., Ramirez Pomoles v. Becton Dickinson & Co., 839 F.2d 1, 3 (1st Cir.1988) (explaining that issues not included in the final pretrial order are generally waived). If pretrial orders are to achieve their intended purpose, “courts and litigants must ordinarily take them seriously.” Roland M. v. Concord Sch. Comto., 910 F.2d 983, 999 (1st Cir.1990), cert. denied, 499 U.S. 912, 111 S.Ct. 1122, 113 L.Ed.2d 230 (1991).

While waivers are sometimes overlooked on appeal, none of the possible routes around HSF’s waiver are passable. The suggestion that the Rule 50(a) motion preserved the defense is little short of jejune. *1196A motion for judgment as a matter of law made at the close of all the evidence preserves for review only those grounds specified at the time, and no others. See Sanchez, 87 F.3d at 723; Sweeney v. Westvaco Co., 926 F.2d 29, 37 (1st Cir.), cert. denied, 502 U.S. 899, 112 S.Ct. 274, 116 L.Ed.2d 226 (1991). By the same token, the suggestion that HSF’s post-trial motion for judgment notwithstanding the verdict — a motion in which HSF for the first time made a claim that EMTALA did not authorize a recovery by the plaintiffs for their own pain, suffering, and anguish — saves the day is equally unavailing. Indeed, this motion is a classic example of a litigant locking the barn door long after the horse has bolted. As the name implies, a renewed motion for judgment as a matter of law under Fed.R.Civ.P. 50(b) is bounded by the movant’s earlier Rule 50(a) motion. The movant cannot use such a motion as a vehicle to introduce a legal theory not distinctly articulated in its close-of-evidence motion for a directed verdict. See Sanchez, 37 F.3d at 723; Perdoni Bros., Inc. v. Concrete Sys., Inc., 35 F.3d 1, 3 (1st Cir.1994); Systemized of New Eng., Inc. v. SCM, Inc., 732 F.2d 1030, 1035-36 (1st Cir.1984); see also James W. Moore, 5A Moore’s Federal Practice ¶ 50.08 (2d ed. 1994) (explaining that a motion for judgment after the verdict under Rule 50(b) “may only be premised upon particular grounds raised in the earlier motion made at the close of all the evidence,” and that, accordingly, “any argument omitted from the motion made at the close of the evidence is waived as a ground for judgment under Rule 50(b)”).

The last possibility that we consider relates to the reality that the raise-or-waive rule (like virtually all subsets of the plain error principle) admits of an occasional exception in the interests of justice. Thus, the court of appeals has discretion to reheve a party from the normal consequences of failure to proffer a defense in a timeous manner. See United States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir.1990) (holding that “an appellate court has discretion, in an exceptional case, to reach virgin issues”); accord Singleton v. Wulff, 428 U.S. 106,121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); United States v. Krynicki, 689 F.2d 289, 291-92 (1st Cir.1982). But the exceptions are few and far between, and appellate discretion should not be affirmatively exercised unless error is plain and the equities heavily preponderate in favor of correcting it. To meet this benchmark, the omitted argument ordinarily will have to be “highly persuasive,” and declining to reach it win have to portend “a miscarriage of justice.” Krynicki, 689 F.2d at 292. Taking into account the dimensions of this obstacle, we discern no compelling basis for invoking this court’s discretion.

EMTALA looks to state law, broadly defined to include Puerto Rico law, see 42 U.S.C. §§ 410(h), 1395x(x), anent the availability of damages. It contains the following instruction:

Any individual who suffers personal harm as a direct result of a participating hospital’s violation of a requirement of this section may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the State in which the hospital is located....

42 U.S.C. § 1395dd(d)(2). HSF’s argument in effect proposes that we construe the words “individual” and “direct” as denoting the patient herself, and no one else. But this is only one of two possible constructions of the statute. It is equally open to read the law as permitting an individual who has a special relationship with another — say, a wife deprived of consortium or, as here, a bereaved relative — to sue when she is harmed in direct consequence of an EMTALA violation inflicted upon such other. When death results, this reading would naturally extend the statutory prerogative to individuals who are eligible to bring survivors’ actions under local law. See, e.g., Lane v. Calhoun-Liberty County Hosp. Ass’n, Inc., 846 F.Supp. 1543, 1553 (N.D.Fla.1994) (permitting claimants to recover those damages available to survivors under Florida law); (Griffith v. Mount Carmel Med. Ctr., 842 F.Supp. 1359, 1365 (D.Kan.1994) (affirming award of damages to wife and children of a decedent).

Since both readings are superficially plausible, we cannot say it was plain error for the lower court, in the absence of any timely *1197objection, to interpret the statute generously, thus providing remediation for the decedent’s heirs comparable to that which they would ordinarily receive under local law. See Widow of Delgado v. Boston Ins. Co., 101 P.R. Dec. 598, 599-60 (1 Official Translation 824, 825) (1973) (explaining that the heirs of a person who died through another’s negligence have claims both for their own suffering and the suffering of the decedent).

2. Excessiveness. HSF’s final storming of the barricades consists of a frontal attack on the amount of the jury’s award and a flanking attack on Judge Perez-Gimenez’s decision not to trim it. Both determinations are reviewable under an abuse-of-discretion rubric. See, e.g., Segal v. Gilbert Color Sys., Inc., 746 F.2d 78, 81 (1st Cir.1984).

This aspect of the case centers around the size of the aggregate damage award. Excessiveness, like beauty, is often in the eye of the beholder. Accordingly, the case law instructs that a damage award must endure unless it is “grossly excessive, inordinate, shocking to the conscience of the court, or so high that it would be a denial of justice to permit it to stand.” Id. at 80-81 (quoting Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 159 & n. 4, 89 S.Ct. 331, 333 & n. 4, 21 L.Ed.2d 309 (1968); internal quotation marks omitted). An appellate court’s normal disinclination to second-guess a jury’s evaluation of the proper amount of damages is magnified where, as here, the damages entail a monetary valuation of intangible losses, and the trial judge, having seen and heard the witnesses at first hand, accepts the jury’s appraisal. See Ruiz v. Gonzalez Caraballo, 929 F.2d 31, 34 (1st Cir.1991).

Measured by this standard, the verdicts in favor of the survivors are beyond reproach. Puerto Rico law permits certain close relatives to bring suits of this type without requiring a showing of physical injury or economic loss. See P.R.Laws Ann. tit. 31, § 5141 (1990); see also LaForest v. Autoridad de Las Fuentes Fluviales, 536 F.2d 443, 444-45 (1st Cir.1976) (applying Puerto Rico law and allowing wrongful death action by the decedent’s parents and siblings); Burke v. Compagnie Nationale Air France, 699 F.Supp. 1016, 1018 (D.P.R.1988) (explaining that, under Puerto Rico’s Civil Code, “mental suffering is generally just as com-pensable as physical harm”).

Here, the plaintiffs presented both lay testimony and expert opinion evidence regarding their pain, suffering, and mental anguish (past, present, and future). The testimony indicated that the decedent was a matriarchal figure who functioned as the hub of the family circle. Her son, Angel, lived with her; her two daughters, Gloria and Esther, resided nearby; her deceased son’s four children — who lost their father a mere five months before their grandmother perished— dwelt in her home for much of their lives. The plaintiffs’ expert testified that all three of Ms. Gonzalez’s children suffered depression in the wake of their mother’s death; and that the four grandchildren experienced sadness, suffering and the like that would take up to five years to abate.

At trial, HSF neither rebutted this testimony in kind nor effectively impeached it. On appeal, HSF sends up a smoke screen, resorting to highly questionable practices. Citing authority out of context, and neglecting to insert ellipses to signify textual omissions — its citation of Ruiz, 929 F.2d at 34, as “authority” for a proposition exactly the opposite of what the case holds is a prime example — HSF strains to carry the heavy burden inherent in challenging a jury’s award of damages for noneconomic loss. We find its argument to be both disingenuous and unpersuasive.

Objectively considered, the record easily supports the jury’s assessment of damages in favor of the offspring. It is hard to doubt that the plaintiffs suffered when the woman described by one witness as the trunk of the family tree was cut down. The open question involves the difficult chore of translating their pain, suffering, and anguish into dollars. This is a matter largely within the jury’s ken. See id. Taking into account the expert’s testimony and the evidence of the close-knit family structure, the sums awarded do not shock — or even vellicate — our collective conscience.

*1198This leaves the $200,000 awarded to the heirs on account of Ms. Gonzalez’s pain and suffering. Though generous, the jury’s assessment does not outstrip the bounds of reason. Due to the Hospital’s failure to provide even the most rudimentary screening, Ms. Gonzalez spent the few remaining hours of her life in agony, beset by nausea, dizziness, and chest pains. It is hard to imagine — let alone to quantify in dollars — the sheer terror that she must have felt while waiting for medical attention that never came.

Although HSF mounts a series of arguments crafted to cast doubt upon the size of the verdict, these arguments are unpersuasive. This case, in which the decedent’s travails extended over a period of several hours, is unlike cases involving sudden death in which a decedent’s pain and suffering is limited to a few seconds or, at most, a matter of minutes. See, e.g., Bonn v. Puerto Rico Int'l Airlines, Inc., 518 F.2d 89, 94 (1st Cir.1976). By like token, merely showing that the damage award is generous in comparison to other (hand-picked) cases is insufficient to warrant relief. See Havinga v. Crowley Towing & Transp. Co., 24 F.3d 1480, 1488-89 (1st Cir.1994). Finally, it is beside the point that judges in the commonwealth courts frequently award lesser sums in wrongful death actions. While EMTALA refers to local law to determine the scope of damages, see 42 U.S.C. § 1395dd(d)(2), this requirement does not override the general rule that “[a] federal jury ... is not bound in making its determination by the amount that the Commonwealth courts have awarded or approved.” LaForest, 536 F.2d at 446-47.

To recapitulate, converting feelings such as pain, suffering, and mental anguish into dollars is not an exact science. The jury is free “to harmonize the verdict at the highest or lowest points for which there is a sound evidentiary predicate, or anywhere in between ... so long as the end result does not ... strike such a dissonant chord that justice would be denied were the judgment permitted to stand.” Milone v. Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir.1988). Here, we do not find the damages assigned by the jury to cross the outer limit of the wide universe of acceptable awards. In sum, the damage award in the heirs’ favor is neither legally inappropriate nor so excessive as to necessitate a remittitur.10

V. CONCLUSION

We need go no further. HSF has not presented arguments capable of overcoming the formidable hurdles it faces in challenging either the liability determination or the damage assessment of a properly instructed jury. The judgment below must therefore be

Affirmed.

APPENDIX

EMTALA Excerpts

In the case of a hospital that has a hospital emergency department, if any individual (whether or not eligible for benefits under [Medicare]), comes to the emergency department and a request is made on the individual’s behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital’s emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition (within the meaning of subsection (e)(1) of this section) exists.

42 U.S.C. § 1395dd(a).

If any individual (whether or not eligible for benefits under [Medicare]) comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide either—

(A) within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or

*1199(B)for transfer of the individual to another medical facility in accordance with subsection (e) of this section.

42 U.S.C. § 1395dd(b)(l).

If an individual at a hospital has an emergency medical condition which has not been stabilized (within the meaning of subsection (e)(3)(b) of this section), the hospital may not transfer the individual unless—

(A)(i) the individual (or a legally responsible person acting on the individual’s behalf) after being informed of the hospital’s obligations under this section and of the risk of transfer, in writing requests transfer to another medical facility [, or]

(ii) a physician ... has signed a certification that based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual ... and

(B) the transfer is an appropriate transfer ... [as defined infra ].

42 U.S.C. § 1395dd(c)(l).

An appropriate transfer to a medical facility is a transfer' — •

(A) in which the transferring hospital provides the medical treatment within its capacity which minimizes the risks to the individual’s health ...;

(B) in which the receiving facility—

(i) has available space and qualified personnel for the treatment of the individual, and

(ii) has agreed to accept transfer of the individual and to provide appropriate medical treatment; life support measures during the transfer. ...

(C) in which the transferring hospital sends to the receiving facility all [relevant] medical records ...; [and]

(D) in which the transfer is effected through qualified personnel and transportation equipment, as required including the use of necessary and medically appropriate

42 U.S.C. § 1395dd(c)(2).

A participating hospital that negligently violates a requirement of this section is subject to a civil monetary penalty of not more than $50,000 ... for each such violation.

42 U.S.C. § 1395dd(d)(l)(A).

Any individual who suffers personal harm as a direct result of a participating hospital’s violation of a requirement of this section may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the State in which the hospital is located, and such equitable relief as is appropriate.

42 U.S.C. § 1395dd(d)(2)(A).

The term “emergency medical condition” means ...

(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—

(i) placing the health of the individual ... in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part....

42 U.S.C. § 1395dd(e)(l)(A).

A participating hospital may not delay provision of an appropriate medical screening examination required under subsection (a) of this section or further medical examination and treatment required under subsection (b) of this section in order to inquire about the individual’s method of payment or insurance status.

42 U.S.C. § 1395dd(h).

GORSUCH, Circuit Judge.

When holding a hammer, every problem can seem a nail. After Banner Health decided it no longer wanted his services at its hospital, Dr. Ron Genova brought this lawsuit. He argues that Banner retaliated against him for complaining about overcrowded emergency room conditions, that the hospital’s conduct violated the Emergency Medical Treatment and Active Labor Act (EMTALA), and that he is entitled to damages. We don’t doubt Dr. Genova acted as his conscience compelled. Neither do we doubt that EMTALA is a powerful legal tool in the right circumstances. The trouble is, that federal statute just isn’t designed for this particular job and Dr. Genova has long since released any claim he might have under state law.

Dr. Genova and hospital administrators at Banner Health clashed often. Dr. Ge-nova didn’t like the way Banner operated the Greeley hospital where he worked. Dr. Genova said Banner kept the emergency room open even when its capacities were overtaxed. In his view, Banner greedily hoarded patients that could and should have received timelier treatment elsewhere. Banner administrators had no more generous a view of Dr. Genova. They said he didn’t know what he was talking about and that he raised his concerns in an unprofessional manner.

One night things reached a boil. Dr. Genova called Banner administrator Rick Sutton, insisting that the emergency room was too busy and patients should be diverted to other hospitals. As Mr. Sutton tells it, Dr. Genova became more than a little bellicose, even threatening to tell waiting emergency room patients “to go home. We are going to turn off the lights, lock the doors.... I am the captain of the ship.”

After Dr. Genova’s call, Mr. Sutton rang the hospital’s medical director, Dr. Jim Campain, for advice. In turn, Dr. Cam-pain called Dr. Tim Hutchinson, another physician on duty that night, seeking his first-hand assessment of the situation. Dr. Hutchinson reported that the emergency room was busy but said “we’re getting through it,” and he offered his view that the hospital could handle the workload. Dr. Campain shared this report with Mr. Sutton and recommended that the emergency room remain open. Mr. Sutton agreed and, citing what he perceived to be Dr. Genova’s unprofessional manner on this and other occasions, decided to discontinue Dr. Genova’s services.

*1097That led to this lawsuit. Before the district court, Dr. Genova argued that Banner and Mr. Sutton violated EMTALA, 42 U.S.C. § 1395dd, and state law, by discharging him for reporting overcrowded emergency room conditions. The district court, however, granted summary judgment for the defendants and it is this result Dr. Genova now asks us to undo.

It is a hard fact in today’s world that patients without the ability to pay sometimes rely on hospital emergency rooms not just for emergencies but to treat their routine and chronic medical problems. Meeting this demand can pose even the most altruistic hospital with a grave financial challenge. Hospitals face the alluring temptation to shift these patients — and the losses they represent — onto nearby rivals. Sometimes hospitals succumb to this temptation, sometimes going so far as to “dump” patients with genuine emergency conditions before they can be examined and stabilized. See Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 796 (10th Cir. 2001).

Congress has sought to combat this incentive structure with EMTALA. EMTALA imposes “two primary obligations” on hospitals that participate in the Medicare program and operate emergency rooms. Id. First, a hospital must examine everyone who arrives in its emergency room seeking treatment, regardless of their ability to pay. See id. at 796-97 (discussing 42 U.S.C. § 1395dd(a)).1 Second, if the examination reveals the patient is suffering from an emergency medical condition, the hospital usually must stabilize the patient before getting into the business of trying to transfer him elsewhere. See id. at 796 (discussing 42 U.S.C. § 1395dd(d)). Of course, the statute recognizes that sometimes a hospital simply cannot provide the treatment a patient needs: in those circumstances, the hospital must transfer the patient. See 42 U.S.C. § 1395dd(b)(l)(B). The statute also requires hospitals to respect an unstabilized patient’s wishes about the prospect of a transfer. See id. § 1395dd(b)(3). But the basic statutory point is plain: a patient requiring emergency care may not be dumped on another hospital when there is no medical justification for doing so. See id. § 1395dd(c)(l)(A).

To help give bite to its policy objectives, EMTALA contains a pair of provisions allowing private persons the right to sue for' damages. It allows suits by “[a]ny individual who suffers personal harm as a direct result of a participating hospital’s violation of a requirement of this section.” Id. § 1395dd(d)(2)(A). It adds this with respect to whistleblowers:

Whistleblower protections

A participating hospital may not penalize or take adverse action [1] against a qualified medical person ... or a physician because the person or physician refuses to authorize the transfer of an individual with an emergency medical condition that has not been stabilized or [2] against any hospital employee because the employee reports a violation of a requirement of this section.

Id. § 1395dd(i).

Dr. Genova doesn’t say which of these provisions he thinks entitles him to recover damages from Banner, but it’s clear enough from the plain language of both that, while they do a very great deal, they do not help his particular cause.

*1098Take the “personal harm” provision and the second clause of the “whistleblower protection” provision. They protect those who are directly harmed by or report a “violation of’ EMTALA. But Dr. Genova doesn’t claim that he was harmed by or retaliated against for reporting a failure by the hospital to examine a patient, stabilize a patient, or transfer a patient who couldn’t be stabilized- — -violations of EM-TALA all. Instead, he claims that he was retaliated against for reporting his medical opinion that patients would be better served if directed to other facilities. Put inexactly but more plainly, he didn’t complain about patient dumping so much as about patient hoarding. His concern wasn’t directed at the hospital taking too few emergency room patients but too many. His complaint wasn’t about an EMTALA violation but more nearly its inverse.

The same problem repeats itself when we turn to the (remaining) first clause of the whistleblower protection provision. It protects those who refuse to authorize the premature or improper transfer of a patient with an emergency condition. Here again, Dr. Genova doesn’t suggest he found himself in those shoes. Instead of complaining that Banner retaliated against him for refusing to transfer patients, Dr. Genova complains that Banner retaliated against him for wanting to send patients elsewhere. And EMTALA simply does not speak to that issue.

In observing that EMTALA fails to afford Dr. Genova a cause of action, we hardly mean to diminish the importance of the issues he raised. Just as a hospital (in a world without EMTALA) might seek to maximize profits by shedding patients who can’t pay, so too a hospital might seek to maximize profits by hoarding patients who can. Undoubtedly, both can pose problems for patient safety. It may be that the latter strategy faces a greater chance of market correction: if the news gets out and if a significant enough number of patients can choose where to go, a hospital known for overcrowding risks losing paying customers. But whether because of this reason or some altogether different reason, it is plain enough that EMTALA’s language focuses on the former and not the latter problem. There is even a lively ongoing debate whether by taking such a strong stand against the particular evil of patient dumping, EMTALA has — paradoxically — contributed to overcrowded emergency rooms nationwide. Some suggest to avoid EMTALA liability for patient dumping, hospitals have taken to holding onto patients (paying or non-paying) even when stretched beyond capacity. Compare Robert Wanerman, The EMTALA Paradox, 40 Ann. Emergency Med. 464, 467-68 (2002) (so arguing), with Laura D. Hermer, The Scapegoat: EMTALA and Emergency Department Overcrowding, 14 J.L. & Pol’y 695, 716-25 (2006) (taking the opposing view).

However that might be, we think it’s important to acknowledge another link between patient dumping and hoarding. Not only is it arguable whether prohibiting dumping may lead to hoarding, it is easy to see how hoarding could lead to dumping and, with it, EMTALA violations. Surely there exists a tipping point at which a hoarding hospital can’t keep up with demand, when it becomes so overwhelmed that it has to skimp on its statutory EM-TALA screening and stabilization obligations or begin transferring at-risk patients. Though hoarding and dumping are different problems, it seems equally true that the one can lead to the other. No doubt this is what Dr. Genova thought he was witnessing, a moment when his hospital was about to reach the tipping point.

*1099But even acknowledging this much doesn’t rescue his case. The statute Congress passed generally permits suit only when the plaintiff was harmed by or reported an existing EMTALA violation, not an impending one. The personal harm private right of action extends only to those directly harmed by “a violation of a requirement of’ EMTALA. 42 U.S.C. § 1395dd(d)(2)(A) (emphasis added). The second clause of the whistleblower protection provision permits suit only by those reporting “a violation of a requirement of EMTALA.” Id. § 1395dd(i) (emphasis added). Neither contemplates a cause of action for an EMTALA violation that is yet to be.

Admittedly, the first clause of the whis-tleblower protection provision allows qualified medical personnel who “refuse[] to authorize the transfer of an individual with an emergency medical condition that has not been stabilized” to bring suit. Admittedly, this scenario doesn’t involve an actual EMTALA violation but an averted potential one: a hospital would violate EMTALA only if it proceeds with the transfer notwithstanding the doctor’s refusal. So we know Congress has permitted damages actions for those who suffer or report any actual violation and for those who report this one particular kind of unrealized violation. But as we’ve seen, Dr. Genova simply does not contend that he reported the sort of unrealized violation Congress protected.

With the plain language so much against him, Dr. Genova retreats to an argument about statutory purpose. In order to give full voice to its purpose of protecting patients, he suggests that we should read EMTALA as affording damages to anyone who is retaliated against for reporting imminent but as-yet unrealized statutory violations of any kind- — -not just the kind mentioned in the first clause of the whis-tleblower protection provision.

This argument fails for many reasons, but none more important than it mistakes the nature of the judicial authority. Where, as here, “the statute’s language is plain” and not absurd on its face, “the sole function of the courts ... is to enforce it according to its terms.” Dodd v. United States, 545 U.S. 353, 359, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005). Whatever our policy views on the question of protecting reports of prospective violations, it is Congress’s plain directions, not our personal policy preferences, that control.

When it comes to trying to sleuth out statutory purpose, moreover, one can go badly awry assuming — as Dr. Genova invites us to do — that “whatever” might seem to further “a statute’s primary objective must be the law.” Rodriguez v. United States, 480 U.S. 522, 526, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987). That is to commit the logical fallacy of over-generalization. Legislators will often “compromise on a statute that does not fully address a perceived mischief, accepting half a loaf to facilitate a law’s enactment.” John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L.Rev. 70, 104 (2006). In the real world, it is rare for anyone to pursue a single purpose “at all costs,” without any degree of subtlety, compromise, or recognition of competing interests, let alone succeed in doing so in a legislative process so geared for give-and-take. Rodriguez, 480 U.S. at 526, 107 S.Ct. 1391.

There’s a good deal of evidence, too, of give-and-take in the statute before us. The fact Congress mentioned and protected those who report one sort of prospective violation suggests it was well aware that those who report potential but unrealized EMTALA violations might suffer retaliation. It shows Congress knew well *1100how to protect such persons if it wished to do so. And it suggests the possibility that Congress’s purpose simply didn’t extend so far as to protect those who report any prospective violation. As a matter of “common sense, reflected in the canon ex-pressio unius est exclusio alterius, ... the specification of’ one sort of unrealized violation for legal protection can suggest an intention to “exelu[de] others.” Elwell v. Oklahoma ex rel. Bd. of Regents of Univ. of Okla., 693 F.3d 1303, 1312 (10th Cir. 2012) (internal quotation marks omitted).

Still more evidence suggests the same conclusion. If we were to read EMTALA as protecting those who report any kind of prospective violation, what would be the point of Congress’s decision in the first clause of the whistleblower protection provision to protect those who report one kind of prospective violation — doctors who refuse to sign off on patient transfers? That clause would become surplus, a waste of effort, needless — itself evidence suggesting that Dr. Genova’s interpretation undoes rather than advances congressional purpose. TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (it is a “cardinal principle of statutory construction” that Congress’s words, if at all possible, ought not be read as “superfluous, void, or insignificant”).

Neither is that the end of the problems with Dr. Genova’s interpretation. The Supreme Court has instructed that “unless Congress conveys its purpose clearly,” we are not to assume that it intended to “significantly change[ ] the federal-state balance” of responsibilities. United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). When it comes to regulating medical practice and remedying medical malpractice, the states have long borne primary responsibility. See Pegram v. Herdrich, 530 U.S. 211, 237, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000) (“the field of health care [is] a subject of traditional state regulation”). Yet, had Congress, as Dr. Genova seems to suggest, harbored the wish to provide a cause of action to anyone who reports any situation that could lead to patient dumping, it would have done much to usurp this authority. A state law negligence lawsuit predicated on hiring unqualified doctors, providing insufficient staff, maintaining inadequate facilities, or even providing substandard emergency room medical care, could just as easily be styled as a lawsuit charging that the plaintiff witnessed a hospital or physician risk an EMTALA violation. In this way, the locus of litigation over many claims of medical malpractice and hospital negligence could move from state to federal court.

EMTALA more nearly evinces just the opposite purpose, however: a legislature taking great care to address one particular problem (patient dumping) while otherwise protecting traditional state oversight of medical standards and mishaps. For example, EMTALA doesn’t even try to set a standard for the medical screenings it says all patients must receive, requiring only that they be done “within the capability of the hospital’s emergency department.” See 42 U.S.C. § 1395dd(a); Repp v. Anadarko Mun. Hosp., 43 F.3d 519, 522 (10th Cir.1994). Neither does the statute forbid all patient transfers, but allows them so long as a patient has been stabilized or a doctor signs off on the medical benefits. See 42 U.S.C. § 1395dd(c)(1). And, of course, the statute limits the right to sue for reporting violations to hospital employees, and doesn’t grant it to the public at large. See id. § 1395dd(i). In all these ways — quite independently but consistently with our understanding of the statute’s plain language — it’s clear that Congress’s purpose in EMTALA was to fire a rifle at discrete and carefully chosen targets, not to loose a federal blunderbuss in the gen*1101era! direction of “patient protection” as Dr. Genova suggests.2

Persuaded that Congress’s plain language and purposes in EMTALA do not extend as far as Dr. Genova suggests, we turn to consider his state law claims in contract and tort. Here his efforts fail for a different reason. They don’t fail because state law neglects to address the sort of problems he claims to have seen and reported — we don’t doubt, for example, that a patient who suffered complications as a result of neglect brought on by overcrowding would have a good claim under state law. Instead, they fail at least and most obviously because he expressly waived any right to sue Banner for them.3

Dr. Genova provided his services to Banner not as its employee but as a member of a professional corporation that contracted with Banner. Under the agreement between Banner and North Colorado Emergency Physicians (NCEP) — as the corporation is known — Banner generally didn’t have control over NCEP’s staffing decisions but under certain circumstances it could request the replacement of a physician. Dr. Genova insists (without dispute) that he is a third-party beneficiary of this agreement. He insists, too, that Banner violated its agreement with NCEP when it demanded his replacement in circumstances the contract did not contemplate or permit.

The difficulty is that Dr. Genova entered into another and very different contract of his own with Banner. That contract provided that if the hospital decided, for any reason, to “discontinuef ]” his services, he would be “deemed to have resigned from the Medical Staff’ and no longer “entitled to provide at the Hospital any of the professional physician services [he] previously provided.” Dr. Genova further agreed to “release Banner ... from any liability, claim, cause of action or demand connected with the termination of [his] Medical Staff membership and clinical privileges.”

By its plain terms, the language of this agreement seems to foreclose Dr. Genova’s contract and tort claims. His services were pretty clearly discontinued at the hospital — indeed, his whole EMTALA claim hinges on that premise. The discontinuation of his services appears to have triggered his automatic resignation from the medical staff and a loss of the right to provide professional services at the hospital. And that, in turn, seems to mean the contract’s capacious release applies.

Dr. Genova replies in this way. Though he signed the release with Banner, he points out that he was an NCEP employee whom Mr. Sutton had no authority to fire, only the contractual right to call on NCEP to replace. Because Mr. Sutton couldn’t fire him, Dr. Genova continues, it follows that his medical staff membership and clinical privileges were never terminated, so his lawsuit is not “connected with” the termination of either and the release isn’t implicated by its own terms.

This logic we do not follow. The release states that if and when Dr. Genova’s services are “discontinued” by the hospital, *1102he is deemed to have resigned from the medical staff, to have lost the right to provide services, and to have released any claim. A “firing” is not required. Neither does anyone dispute that Mr. Sutton asked NCEP to replace Dr. Genova, or that NCEP acquiesced to that request. By any measure, we think it plain that, in this way, Dr. Genova’s services were indeed discontinued — “[b]roken off, interrupted, stopped; made not continuous in time or space.” See 4 Oxford English Dictionary 746 (2d ed.1991). From this fact it follows by operation of the plain terms of the parties’ agreement that he released his state law claims against Banner.

If the release does so much, Dr. Genova suggests that Banner’s attempt at enforcing it violates Colorado public policy. At-will employees, Dr. Genova notes, can sue for wrongful discharge under Colorado law “if the discharge ... contravenes a clear mandate of public policy.” Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 107 (Colo.1992). But even overlooking Dr. Ge-nova’s incongruous if implicit suggestion here that he should be treated as a Banner employee, we still aren’t convinced. We aren’t because Dr. Genova has failed to identify a Colorado statute, administrative regulation, or ethical code clearly mandating the reporting of patient overcrowding. See Rocky Mountain Hosp. & Med. Serv. v. Mariani 916 P.2d 519, 525 (Colo.1996) (identifying these as sources from which state public policy might be gleaned).

Before the district court and in this one, Dr. Genova claimed to identify two sources of applicable public policy: EMTALA and the hospital’s internal policies. As we’ve seen already, however, EMTALA doesn’t say what Dr. Genova thinks it says. Neither does Dr. Genova offer us any authority or argument to support his assertion that Colorado’s public policy may be gleaned from a corporation’s internal policies. If Colorado law is anything like those of other states to have addressed the matter — and we are given no reason to think it isn’t — the opposite must be true. See, e.g., Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 32 Cal.Rptr.2d 223, 876 P.2d 1022, 1033 (1994); Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 762 (Iowa 2009); Smith-Pfeffer v. Superintendent of Walter E. Fernald State Sch., 404 Mass. 145, 533 N.E.2d 1368, 1371-72 (1989); Vannerson v. Bd. of Regents of Univ. of Okla., 784 P.2d 1053, 1055 (Okla.1989).4

An amicus brief filed by the American Academy of Emergency Medicine suggests that Dr. Genova’s breach of contract claim against Banner survives for an entirely different reason. The Academy notes that contracts are usually interpreted to contain an implied duty of good faith and fair dealing. This, the Academy argues, includes the agreement between Banner and NCEP — the same agreement to which everyone agrees Dr. Genova is a third-party beneficiary. In the Academy’s view, Mr. Sutton acted in bad faith when he invoked the provision in that contract allowing him to seek a replacement to take Dr. Genova’s spot at the hospital. Dr. Genova should be able to maintain a claim for at least this much, the Academy reasons, because Colorado doesn’t permit the duty of good faith and fair dealing to be waived or released.

*1103We see two difficulties here. In the first place, Dr. Genova hasn’t pursued the argument for himself. Though we have the discretion to address an argument developed only by an amicus rather than a party, we will typically exercise that discretion only when (1) a party has done something to incorporate the argument “by reference” in its own brief, or (2) “the issue involves a jurisdictional question or touches upon an issue of federalism or comity that could be considered sua sponte.” Tyler v. City of Manhattan, 118 F.3d 1400, 1404 (10th Cir.1997); see also Pittsburg & Midway Coal Mining Co. v. Yazzie, 909 F.2d 1387, 1422 (10th Cir. 1990). Neither of these conditions is met here.

Beyond that, there quickly appears a good reason why Dr. Genova didn’t attempt the argument. No Colorado court has answered — one way or the other — the question whether the duty of good faith and fair dealing may be waived by mutual agreement. See, e.g., Wells Fargo, N.A. v. Khan, No. 12-cv-00681-WYD-CBS, 2012 WL 6643834, at *4 (D.Colo. Dec. 20, 2012). But it is long settled in Colorado, as it is in many jurisdictions, that the duty of good faith and fair dealing cannot be used to “contradict terms or conditions for which a party has bargained.” Amoco Oil Co. v. Ervin, 908 P.2d 493, 498 (Colo.1995); see also ADT Sec. Servs., Inc. v. Premier Home Prot., Inc., 181 P.3d 288, 293 (Colo. App.2007); Lutfi v. Brighton Cmty. Hosp. Ass’n, 40 P.3d 51, 59 (Colo.App.2001); Grossman v. Columbine Med. Grp., Inc., 12 P.3d 269, 271 (Colo.App.1999). In this case, the agreement between Banner and Dr. Genova makes crystal clear that any discontinuation of the doctor’s services for any reason will result in his resignation and release of legal claims. Dr. Genova cannot now undo the force of that bargained-for agreement by invoking the duty of good faith in a different contract. Put differently, while it’s unclear whether the duty of good faith and fair dealing might be waived in contracts where it does apply, it never insinuates itself in the first place in ways and places that undo the parties’ expressly bargained-for rights. Contract law is, after all, generally about effecting the parties’ wishes, not ours. See Amoco Oil, 908 P.2d at 498.

Some examples illustrate the point. In Lutfi, the Colorado Court of Appeals saw no good faith issue when a physician was discharged from his practice group because the parties’ contract “expressly set[ ] forth” the hospital’s right to request a physician’s removal for any reason. 40 P.3d at 59. In Grossman, the Court of Appeals held that a doctor couldn’t maintain an action for breaching the duty of good faith because his contract with the hospital allowed him to be terminated with or without cause. 12 P.3d at 270. The doctor, the court explained, couldn’t “rely on the implied duty of good faith and fair dealing to circumvent terms for which he expressly bargained.” Id. at 271. In much the same way, we see no way to allow Dr. Genova to use the duty of good faith as a way out of his bargained-for release with Banner.

At the end of it all, we don’t doubt that the interests of hospitals and patients can diverge in many ways, that patient dumping represents only one example, or that Dr. Genova always had the best interests of his patients in mind. But the federal law he seeks to invoke addresses a discrete and different problem than the one he raised and he has identified no claim under state law that remains viable after his freely bargained-for release. The judgment of the district court is affirmed.