4 Week 2 Breach and customs 4 Week 2 Breach and customs
4.1. Restatement (Third) of Torts: Phys. & Emot. Harm § 13 Custom
4.2 The T. J. Hooper. The Northern No. 30 And No. 17. The Montrose. In re Eastern Transp. Co. New England Coal & Coke Co. v. Northern Barge Corporation. H. N. Hartwell & Son, Inc., v. Same. (custom) 4.2 The T. J. Hooper. The Northern No. 30 And No. 17. The Montrose. In re Eastern Transp. Co. New England Coal & Coke Co. v. Northern Barge Corporation. H. N. Hartwell & Son, Inc., v. Same. (custom)
(custom)
THE T. J. HOOPER. THE NORTHERN NO. 30 AND NO. 17. THE MONTROSE. In re EASTERN TRANSP. CO. NEW ENGLAND COAL & COKE CO.
v.
NORTHERN BARGE CORPORATION. H. N. HARTWELL & SON, Inc.,
v.
SAME.
Circuit Court of Appeals, Second Circuit.
Foley & Martin, of New York City (James A. Martin and John R. Stewart, both of New York City, of counsel), for Eastern Transp. Co.
Burnham, Bingham, Gould & Murphy, of Boston, Mass., and Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Charles S. Bolster and Miles Wambaugh, both of Boston, Mass., of counsel), for New England Coal & Coke Co. and another.
John W. Oast, Jr., of Norfolk, Va. and Crowell & Rouse, of New York City, for Northern Barge Corporation.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
L. HAND, Circuit Judge.
The barges No. 17 and No. 30, belonging to the Northern Barge Company, had lifted cargoes of coal at Norfolk, Virginia, for New York in March, 1928. They were towed by two tugs of the petitioner, the "Montrose" and the "Hooper," and were lost off the Jersey Coast on March tenth, in an easterly gale. The cargo owners sued the barges under the contracts of carriage; the owner of the barges sued the tugs under the towing contract, both for its own loss and as bailee of the cargoes; the owner of the tug filed a petition to limit its liability. All the suits were joined and heard together, and the judge found that all the vessels were unseaworthy; the tugs, because they did not carry radio receiving sets by which they could have seasonably got warnings of a change in the weather which should have caused them to seek shelter in the Delaware Breakwater en route. He therefore entered an interlocutory decree holding each tug and barge jointly liable to each cargo owner, and each tug for half damages for the loss of its barge. The petitioner appealed, and the barge owner appealed and filed assignments of error.
Each tug had three ocean going coal barges in tow, the lost barge being at the end. The "Montrose," which had the No. 17, took an outside course; the "Hooper" with the No. 30, inside. The weather was fair without ominous symptoms, as the tows passed the Delaware Breakwater about midnight of March eighth, and the barges did not get into serious trouble until they were about opposite Atlantic City some sixty or seventy miles to the north. The wind began to freshen in the morning of the ninth and rose to a gale before noon; by afternoon the second barge of the Hooper's tow [738] was out of hand and signalled the tug, which found that not only this barge needed help, but that the No. 30 was aleak. Both barges anchored and the crew of the No. 30 rode out the storm until the afternoon of the tenth, when she sank, her crew having been meanwhile taken off. The No. 17 sprang a leak about the same time; she too anchored at the Montrose's command and sank on the next morning after her crew also had been rescued. The cargoes and the tugs maintain that the barges were not fit for their service; the cargoes and the barges that the tugs should have gone into the Delaware Breakwater, and besides, did not handle their tows properly.
The evidence of the condition of the barges was very extensive, the greater part being taken out of court. As to each, the fact remains that she foundered in weather that she was bound to withstand. A March gale is not unusual north of Hatteras; barges along the coast must be ready to meet one, and there is in the case at bar no adequate explanation for the result except that these were not well-found. The test of seaworthiness, being ability for the service undertaken, the case might perhaps be left with no more than this. As to the cargoes, the charters excused the barges if "reasonable means" were taken to make them seaworthy; and the barge owners amended their answers during the trial to allege that they had used due diligence in that regard. As will appear, the barges were certainly not seaworthy in fact, and we do not think that the record shows affirmatively the exercise of due diligence to examine them. The examinations at least of the pumps were perfunctory; had they been sufficient the loss would not have occurred.
To take up the evidence more in detail, the bargee of the No. 30 swore that she was making daily about a foot to eighteen inches of water when she left Norfolk, and Hutson, her owner's agent in charge of her upkeep, testified that a barge which made five inches was unseaworthy. Some doubt is thrown upon the bargee's testimony because he had served only upon moulded barges and the No. 30 was flat-bottomed; from which it is argued that he could not have known just how much she really leaked. Nevertheless, he was a man of experience, who swore to a fact of his own observation. We cannot discredit him merely upon the hypothesis that he did not know how to sound his boat. It is not however necessary to depend upon the proof of her leaking when she left Norfolk; she began to leak badly under stress of weather before which she should have been staunch, at least so far that her pumps could keep her alive, and her pumps failed. She had two kinds, hand and steam, but the first could not be manned. While the leaks had been gaining a little before the breakdown, it is probable, or at least possible, that had the tubes not burst, she would have lived, for the gale moderated on Friday night. The tubes were apparently sound when put in about a year before, and it does not appear why they burst; Hutson was very ambiguous as to how long they should last. The barge answers that it was the cold water which burst them, but the bargee gave no such explanation. Moreover, if she leaked so badly that the water gained until it reached the tubes, this was itself evidence of unseaworthiness. If a vessel is to be excused for leaking, she must at least be able to keep the leak down so as not to flood the pumps.
The unseaworthiness of the No. 17 is even clearer. Not only did she begin to leak under no greater stress of weather than the No. 30, but her pumps also failed, though for quite another reason. Part of her cargo was held back from the chain locker by a temporary bulkhead, which carried away because of the barge's pounding. She had begun to leak early in the morning of the ninth, but her bargee believed that he could have kept down the water if he could have used his pumps. When the bulkhead gave, the coal fell into the chain locker and clogged the suction, letting the bow fill without relief, putting the barge by the head and making her helpless. In addition a ventilator carried away, the water finding entrance through the hole; and the judge charged her for the absence of a proper cover, on which however we do not rely; the failure of the bulkhead was quite enough. As already intimated, we need not hold that a barge is necessarily unseaworthy because she leaks in a gale; the heaving and straining of the seams will often probe weak spots which no diligence can discover. It is, however, just against that possibility that the pumps are necessary; whatever impedes their action, or might reasonably be anticipated to do so, is a defect which makes her unfit for her service. As to both barges, therefore, we do not resort to the admissions put in the mouths of both bargees, some of them too extravagant for credence. We do not believe for instance that the No. 30 had six feet of water in her when she broke [739] ground at Norfolk, or that she leaked as well when light as when loaded. We doubt also whether the No. 17 was leaking two inches an hour at Norfolk, or that her bargee complained of an overload. Admissions, especially in cases of this kind, are notoriously unreliable; and watermen are not given to understatement.
A more difficult issue is as to the tugs. We agree with the judge that once conceding the propriety of passing the Breakwater on the night of the eighth, the navigation was good enough. It might have been worse to go back when the storm broke than to keep on. The seas were from the east and southeast, breaking on the starboard quarter of the barges, which if tight and well found should have lived. True they were at the tail and this is the most trying position, but to face the seas in an attempt to return was a doubtful choice; the masters' decision is final unless they made a plain error. The evidence does not justify that conclusion; and so, the case as to them turns upon whether they should have put in at the Breakwater.
The weather bureau at Arlington broadcasts two predictions daily, at ten in the morning and ten in the evening. Apparently there are other reports floating about, which come at uncertain hours but which can also be picked up. The Arlington report of the morning read as follows: "Moderate north, shifting to east and southeast winds, increasing Friday, fair weather to-night." The substance of this, apparently from another source, reached a tow bound north to New York about noon, and, coupled with a falling glass, decided the master to put in to the Delaware Breakwater in the afternoon. The glass had not indeed fallen much and perhaps the tug was over cautious; nevertheless, although the appearances were all fair, he thought discretion the better part of valor. Three other tows followed him, the masters of two of which testified. Their decision was in part determined by example; but they too had received the Arlington report or its equivalent, and though it is doubtful whether alone it would have turned the scale, it is plain that it left them in an indecision which needed little to be resolved on the side of prudence; they preferred to take no chances, and chances they believed there were. Courts have not often such evidence of the opinion of impartial experts, formed in the very circumstances and confirmed by their own conduct at the time.
Moreover, the "Montrose" and the "Hooper" would have had the benefit of the evening report from Arlington had they had proper receiving sets. This predicted worse weather; it read: "Increasing east and southeast winds, becoming fresh to strong, Friday night and increasing cloudiness followed by rain Friday." The bare "increase" of the morning had become "fresh to strong." To be sure this scarcely foretold a gale of from forty to fifty miles for five hours or more, rising at one time to fifty-six; but if the four tows thought the first report enough, the second ought to have laid any doubts. The master of the "Montrose" himself, when asked what he would have done had he received a substantially similar report, said that he would certainly have put in. The master of the "Hooper" was also asked for his opinion, and said that he would have turned back also, but this admission is somewhat vitiated by the incorporation in the question of the statement that it was a "storm warning," which the witness seized upon in his answer. All this seems to us to support the conclusion of the judge that prudent masters, who had received the second warning, would have found the risk more than the exigency warranted; they would have been amply vindicated by what followed. To be sure the barges would, as we have said, probably have withstood the gale, had they been well found; but a master is not justified in putting his tow to every test which she will survive, if she be fit. There is a zone in which proper caution will avoid putting her capacity to the proof; a coefficient of prudence that he should not disregard. Taking the situation as a whole, it seems to us that these masters would have taken undue chances, had they got the broadcasts.
They did not, because their private radio receiving sets, which were on board, were not in working order. These belonged to them personally, and were partly a toy, partly a part of the equipment, but neither furnished by the owner, nor supervised by it. It is not fair to say that there was a general custom among coastwise carriers so to equip their tugs. One line alone did it; as for the rest, they relied upon their crews, so far as they can be said to have relied at all. An adequate receiving set suitable for a coastwise tug can now be got at small cost and is reasonably reliable if kept up; obviously it is a source of great protection to their tows. Twice every day they can receive these predictions, [740] based upon the widest possible information, available to every vessel within two or three hundred miles and more. Such a set is the ears of the tug to catch the spoken word, just as the master's binoculars are her eyes to see a storm signal ashore. Whatever may be said as to other vessels, tugs towing heavy coal laden barges, strung out for half a mile, have little power to manœuvre, and do not, as this case proves, expose themselves to weather which would not turn back stauncher craft. They can have at hand protection against dangers of which they can learn in no other way.
Is it then a final answer that the business had not yet generally adopted receiving sets? There are, no doubt, cases where courts seem to make the general practice of the calling the standard of proper diligence; we have indeed given some currency to the notion ourselves. Ketterer v. Armour & Co. (C. C. A.) 247 F. 921, 931, L. R. A. 1918D, 798; Spang Chalfant & Co. v. Dimon, etc., Corp. (C. C. A.) 57 F.(2d) 965, 967. Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission. Wabash R. Co. v. McDaniels, 107 U. S. 454, 459-461, 2 S. Ct. 932, 27 L. Ed. 605; Texas & P. R. Co. v. Behymer, 189 U. S. 468, 470, 23 S. Ct. 622, 47 L. Ed. 905; Shandrew v. Chicago, etc., R. Co., 142 F. 320, 324, 325 (C. C. A. 8); Maynard v. Buck, 100 Mass. 40. But here there was no custom at all as to receiving sets; some had them, some did not; the most that can be urged is that they had not yet become general. Certainly in such a case we need not pause; when some have thought a device necessary, at least we may say that they were right, and the others too slack. The statute (section 484, title 46, U. S. Code [46 USCA § 484]) does not bear on this situation at all. It prescribes not a receiving, but a transmitting set, and for a very different purpose; to call for help, not to get news. We hold the tugs therefore because had they been properly equipped, they would have got the Arlington reports. The injury was a direct consequence of this unseaworthiness.
Decree affirmed.
4.3 Sheeley v Memorial Hospital (professionals) 4.3 Sheeley v Memorial Hospital (professionals)
Joanne Sheeley et al. v. Memorial Hospital et al.
Supreme Court of Rhode Island
710 A.2d 161 (R.I. 1998), Court Opinion (04/08/1998)
James T. McCormick, for Plaintiff.
Colleen J. Pelletier, William F. White, Mark C. Hadden, Providence, for Defendant.
Before WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS and GOLDBERG, JJ.
[*162] OPINION
GOLDBERG, Justice.
This case is before the court on the appeal of Joanne Sheeley (Sheeley) from the directed verdict entered against her in the underlying medical malpractice action. Specifically Sheeley asserts that the trial justice erred in excluding the testimony of her expert witness, which exclusion resulted in the entry of the directed verdict. 1 For the reasons set [*163] forth below, we hold that the trial justice erred in excluding the testimony and reverse the judgment from which the appeal was taken. Furthermore, we take this opportunity to reexamine the proper standard of care to be applied in medical malpractice cases and, in so doing, abandon the "similar locality" rule, which previously governed the admissibility of expert testimony in such actions. The facts insofar as are pertinent to this appeal are as follows.
On May 19, 1987, Sheeley delivered a healthy child at Memorial Hospital (hospital) in Pawtucket, Rhode Island. At the time of the birth Sheeley was under the care of Mary Ryder, M.D. (Dr. Ryder), then a second-year family practice resident. Brian Jack, M.D. (Dr. Jack), was the faculty member responsible for the supervision of Dr. Ryder.
In conjunction with the delivery process Dr. Ryder performed an episiotomy on Sheeley. This procedure entails a cut into the perineum of the mother, the purpose being to prevent tearing during the delivery. After the baby had been delivered, Dr. Ryder performed a repair of the episiotomy, stitching the incision previously made into the perineum.
After her discharge from the hospital Sheeley developed complications in the area in which the episiotomy had been performed and ultimately developed a rectovaginal fistula. This condition, which consists of an opening between the vagina and the rectum, required corrective surgery. Notwithstanding the surgery, however, Sheeley continued to experience pain and discomfort at the site of the episiotomy. Sheeley, together with her husband Mark Sheeley, then filed suit against the hospital, Dr. Ryder, and Dr. Jack (collectively defendants), alleging that defendants were negligent in performing the episiotomy incision and repairing the same properly. 2
At the trial on the malpractice action, Sheeley sought to introduce the expert medical testimony of Stanley D. Leslie, M.D. (Dr. Leslie), a board certified obstetrician/gynecologist (OB/GYN). Doctor Leslie planned to testify about Dr. Ryder's alleged malpractice and the applicable standard of care as it relates to the performance of an episiotomy. The defendants objected and filed a motion in limine to exclude the testimony, arguing that Dr. Leslie, as an OB/GYN, was not qualified under G.L.1956 § 9-19-41 3 to testify against a family practice resident who was performing obstetric and gynecological care. A hearing on the motion was conducted, at which time it was disclosed that Dr. Leslie had been board certified in obstetrics and gynecology since 1961 and recertified in 1979. Doctor Leslie testified that board certification represents a level of achievement of skill and knowledge as established by a national standard in which the standard of care is uniform throughout the medical specialty. Doctor Leslie is currently a clinical professor of obstetrics and gynecology at the Hill-Science Center, State University, College of Medicine in Syracuse. He is a member of the New York Statewide Professional Standards Review Council, which reviews disputes between doctors and hospitals regarding diagnosis and management, and the Credentials and Certification Committee at the Crouse-Irving Hospital, where his responsibilities include drafting standards for family practice physicians. It was further revealed that Dr. Leslie has in the course of his career delivered approximately 4,000 babies and that even though he has been retired from the practice of obstetrics since 1975, he has maintained his familiarity with [*164] the standards and practices in the field of obstetrics through weekly conferences, active obstetric work, professorial responsibilities, and continuing education.
Nevertheless, relying on Soares v. Vestal, 632 A.2d 647 (R.I.1993), defendants maintained that § 9-19-41 requires a testifying expert to be in the same medical field as the defendant physician. In Soares this court upheld the trial justice's decision to exclude the testimony of the plaintiff's expert witness in a situation in which the expert was board certified in neurology and internal medicine, and the underlying malpractice action involved a family practitioner performing emergency medicine. 632 A.2d at 648. Agreeing that Soares was determinative, the trial justice here granted defendants' motion, stating: "I fail to see where this case is distinguishable from Soares. I don't quarrel with the doctor's background and qualifications. I think he's the inappropriate expert to testify in this case." Sheeley did not have any other experts prepared to testify, nor was she able to procure one within the two-day period allowed by the trial justice. Consequently defendants' motion for a directed verdict was granted. This appeal ensued.
On appeal Sheeley argues that the trial justice's ruling constitutes an abuse of discretion and is clearly wrong because Dr. Leslie was amply qualified to testify concerning the alleged malpractice. The defendants respond by arguing that Sheeley's appeal should be summarily dismissed for her failure to make an adequate offer of proof. Furthermore defendants assert that Sheeley's expert is not competent to offer expert testimony on the appropriate standard of care because he has more specialized training than Dr. Ryder and because he lacks any recent experience in providing obstetric care.
At the outset we note that there is no merit to defendants' contention that Sheeley's failure to make an offer of proof precludes this court from reviewing the trial justice's decision. Rule 103(a)(2) of the Rhode Island Rules of Evidence clearly states that in cases in which the ruling appealed from is one excluding evidence, "the substance of the evidence [had to be] made known to the court by offer or was apparent from the context within which questions were asked" before its exclusion can serve as a basis of error. (Emphasis added.) If, however, the nature of the evidence offered clearly describes the relevance and competence of the offered evidence, no such offer of proof is necessary. See Hudson v. Napolitano, 575 A.2d 187, 188-89 (R.I.1990). In a medical malpractice case expert testimony is an essential requirement in proving the standard of care applicable to the defendant, "unless the lack of care is so obvious as to be within the layman's common knowledge." Richardson v. Fuchs, 523 A.2d 445, 448 (R.I.1987). Accordingly we are of the opinion that in this instance, the nature of the evidence offered clearly evinces its relevance and competence such that an offer of proof was not necessary. That said, we turn to the specific issue on appeal.
"The determination of the competency of an expert witness to testify is within the discretion of the trial justice." Id. This court will not disturb that decision in the absence of clear error or abuse. Id. In fairness to the trial justice, we note that in making her determination with respect to the admissibility of the expert's testimony, she was without the benefit of our decisions in Marshall v. Medical Associates of Rhode Island, Inc., 677 A.2d 425 (R.I.1996), and more importantly Buja v. Morningstar, 688 A.2d 817 (R.I.1997), which have distinguished Soares and limited its holding to situations in which the physician-expert lacks knowledge, skill, experience, or education in the same medical field as the alleged malpractice. Nevertheless, after a review of these cases, we find it clear that the trial justice did in fact abuse her discretion and commit reversible error in excluding the testimony of Dr. Leslie.
In Buja the plaintiffs brought a medical malpractice action against their family practitioners when their child suffered severe medical complications, including cerebral palsy and mental retardation, after having been deprived of oxygen just prior to birth. Buja, 688 A.2d at 818. At trial, the plaintiffs sought to introduce testimony of a board certified obstetrician. The trial justice, however, excluded the testimony and stated that [*165] testimony concerning the standard of care required of a family practitioner practicing obstetrics had to be introduced by an expert in family medicine, not an expert in OB/GYN. Id. Relying on our previous holding in Marshall, this court reversed the trial justice and stated that even though the proposed expert did not practice in the same specialty as the defendants, he clearly had the prerequisite "knowledge, skill, experience, training or education * * * in the field of the alleged malpractice." Id. at 819 (quoting § 9-19-41 and citing Marshall, 677 A.2d at 427). The Buja court held that nothing in the language of § 9-19-41 requires the expert to practice in the same specialty as the defendant. 688 A.2d at 819. "Such an additional requirement is unnecessary and is in contravention to the General Assembly's clear intentions, as expressed in § 9-19-41." 688 A.2d at 819. In view of this holding and the striking factual similarities of the instant matter to Buja, there can be little doubt that we must reverse the decision of the trial justice and remand the case for a new trial.
Yet in spite of our holdings in Buja and Marshall, defendants continue to insist that Dr. Leslie is not qualified to testify. In essence defendants argue that Dr. Leslie is overqualified, stating that a board certified OB/GYN does not possess the same knowledge, skill, experience, training, or education as a second-year family practice resident performing obstetrics in Rhode Island. Furthermore defendants argue that because Dr. Leslie has not actually practiced obstetrics since 1975, his experience in providing obstetrical care is "clearly outdated" and he is therefore not competent to testify concerning the appropriate standard of care as it applied to the performance of an episiotomy and the repair of the same--even while they acknowledge that the standard of care relative to the procedures involved in the alleged malpractice have changed little over the last thirty years. Finally defendants assert that pursuant to the limitations of the "similar locality" rule, Dr. Leslie must be disqualified because he lacks any direct knowledge about the applicable standard of care for a family practice resident providing obstetric care in Rhode Island. The defendants suggest that Dr. Leslie, although he has attended national conferences and studied medical journals and treatises in addition to his national certification, is not qualified to testify about the applicable local standard of care. In light of these arguments and with a view toward preventing any further confusion regarding the necessary qualifications of an expert testifying about the proper standard of care in medical malpractice actions, we take this opportunity to revisit our position on the appropriate standard of care.
For over three-quarters of a century this court has subscribed to the principle "that when a physician undertakes to treat or diagnose a patient, he or she is under a duty to exercise 'the same degree of diligence and skill which is commonly possessed by other members of the profession who are engaged in the same type of practice in similar localities having due regard for the state of scientific knowledge at the time of treatment.'" DiFranco v. Klein, 657 A.2d 145, 148 (R.I.1995); see also Schenck v. Roger Williams General Hospital, 119 R.I. 510, 515, 382 A.2d 514, 517 (1977); Marshall v. Tomaselli, 118 R.I. 190, 196, 372 A.2d 1280, 1284 (1977); Wilkinson v. Vesey, 110 R.I. 606, 613, 295 A.2d 676, 682 (1972); Bigney v. Fisher, 26 R.I. 402, 403, 59 A. 72, 72 (1904). This "same or similar locality" rule is a somewhat expanded version of the "strict locality" rule, which requires that the expert testifying be from the same community as the defendant. See Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187, 349 A.2d 245, 248 (1975); see, e.g., Moon v. United States, 512 F.Supp. 140, 144 (D.Nev.1981); Hoagland v. Kamp, 155 A.D.2d 148, 552 N.Y.S.2d 978, 979 (1990). The rationale underlying the development of the "strict locality" rule was a recognition that opportunities, experience, and conditions may differ between densely and sparsely populated communities. See Shilkret, 349 A.2d at 248-49; 61 Am.Jur.2d, Physicians, Surgeons and Other Healers, § 218 (1981).
This restrictive rule, however, soon came under attack in that it legitimized a low standard of care in certain smaller communities and that it also failed to address or to compensate for the potential so-called conspiracy of silence in a plaintiff's locality that [*166] would preclude any possibility of obtaining expert testimony. See Shilkret, 349 A.2d at 249. Furthermore, as this court noted in Wilkinson, the locality rule is somewhat of an anachronism in view of "[m]odern systems of transportation and communication." Wilkinson, 110 R.I. at 613 n. 5, 295 A.2d at 682 n. 5. Thus many jurisdictions, including our own, adopted the "same or similar locality" rule, which allows for experts from similarly situated communities to testify concerning the appropriate standard of care. Id. ; see, e.g., Portillo v. United States, 816 F.Supp. 444, 446 (W.D.Tex.1993); Priest v. Lindig, 583 P.2d 173, 176 (Alaska 1978); Tucker v. Meis, 127 N.C.App. 197, 487 S.E.2d 827, 829 (1997). Nevertheless, even with this somewhat expanded view, the medical malpractice bar has continually urged a narrow application of the rule, arguing the need for similar, if not identical, education, training, and experience. See Buja, 688 A.2d at 818 (defense counsel argued obstetrician not qualified to testify concerning standard of care required of family practitioner performing obstetrical procedures); Marshall, 677 A.2d at 426-27 (defense counsel argued physician skilled in pediatrics and family medicine not qualified to testify against physician certified in emergency and internal medicine when the alleged malpractice concerned treatment of animal bite). The obvious result of such an application, however, is to reduce the pool of qualified experts to its lowest common denominator. This is a consequence that we have never intended.
The appropriate standard of care to be utilized in any given procedure should not be compartmentalized by a physician's area of professional specialization or certification. On the contrary, we believe the focus in any medical malpractice case should be the procedure performed and the question of whether it was executed in conformity with the recognized standard of care, the primary concern being whether the treatment was administered in a reasonable manner. Any doctor with knowledge of or familiarity with the procedure, acquired through experience, observation, association, or education, is competent to testify concerning the requisite standard of care and whether the care in any given case deviated from that standard. The resources available to a physician, his or her specific area of practice, or the length of time he or she has been practicing are all issues that should be considered by the trial justice in making his or her decision regarding the qualification of an expert. No one issue, however, should be determinative. Furthermore, except in extreme cases, a witness who has obtained board certification in a particular specialty related to the procedure in question, especially when that board certification reflects a national standard of training and qualification, should be presumptively qualified to render an opinion. See Shilkret, 349 A.2d at 253; see also Cheek v. Domingo, 628 F.Supp. 149, 152 (D.Virgin Islands 1986) (holding specialist may testify regarding standard of care of general practitioner provided proposed witness possesses requisite knowledge).
This court is of the opinion that whatever geographical impediments may previously have justified the need for a "similar locality" analysis are no longer applicable in view of the present-day realities of the medical profession. As the Shilkret court observed:
"The modern physician bears little resemblance to his predecessors. As we have indicated at length, the medical schools of yesterday could not possibly compare with the accredited institutions of today, many of which are associated with teaching hospitals. But the contrast merely begins at that point in the medical career: vastly superior postgraduate training, the dynamic impact of modern communications and transportation, the proliferation of medical literature, frequent seminars and conferences on a variety of professional subjects, and the growing availability of modern clinical facilities are but some of the developments in the medical profession which combine to produce contemporary standards that are not only much higher than they were just a few short years ago, but are also national in scope.
"In sum, the traditional locality rules no longer fit the present-day medical malpractice case." Shilkret, 349 A.2d at 252.
We agree. Furthermore, we note that in enacting § 9-19-41, the Legislature failed to [*167] employ any reference to the "similar locality" rule. We conclude that this omission was deliberate and constitutes a recognition of the national approach to the delivery of medical services, especially in the urban centers of this country, of which Rhode Island is certainly one.
Accordingly we join the growing number of jurisdictions that have repudiated the "same or similar" communities test in favor of a national standard and hold that a physician is under a duty to use the degree of care and skill that is expected of a reasonably competent practitioner in the same class to which he or she belongs, acting in the same or similar circumstances. 4 In this case the alleged malpractice occurred in the field of obstetrics and involved a procedure and attendant standard of care that has remained constant for over thirty years. Doctor Leslie, as a board certified OB/GYN with over thirty years of experience, a clinical professor of obstetrics and gynecology at a major New York hospital, and a member of the New York Statewide Professional Standards Review Council, is undoubtedly qualified to testify regarding the appropriate standard of care.
For the foregoing reasons the plaintiff's appeal is sustained, and the judgment appealed from is reversed. The papers in the case are remanded to the Superior Court with our decision endorsed thereon for a new trial in accordance with this opinion.
fn 1. Pursuant to Rule 50 of the Superior Court Rules of Civil Procedure, as amended in 1995, motions for directed verdict are now designated as motions for judgment as a matter of law.
fn 2. Mark Sheeley, who has since been divorced from Joanne, is no longer a party to the lawsuit. The complaint against Dr. Jack has been dismissed.
fn 3. General Laws 1956 § 9-19-41 states:
"In any legal action based upon a cause of action arising on or after January 1, 1987, for personal injury or wrongful death filed against a licensed physician, hospital, clinic, health maintenance organization, professional service corporation providing health care services, dentists or dental hygienist based on professional negligence, only those persons who by knowledge, skill, experience, training or education qualify as experts in the field of the alleged malpractice shall be permitted to give expert testimony as to the alleged malpractice."
fn 4. See Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187, 349 A.2d 245, 253 (1975); see also Parker v. Collins, 605 So.2d 824, 826 (Ala.1992); Capitol Hill Hospital v. Jones, 532 A.2d 89, 94 (D.C.App.1987); Williams v. Ricks, 152 Ga.App. 555, 263 S.E.2d 457, 458 (1979); Advincula v. United Blood Services, 176 Ill.2d 1, 223 Ill.Dec. 1, 12, 678 N.E.2d 1009, 1020 (1996); Vergara v. Doan, 593 N.E.2d 185, 187 (Ind.1992); Speed v. State, 240 N.W.2d 901, 908 (Iowa 1976); Blair v. Eblen, 461 S.W.2d 370, 373 (Ky.Ct.App.1970); Josselyn v. Dearborn, 143 Me. 328, 62 A.2d 174, 179 (1948); Stepakoff v. Kantar, 393 Mass. 836, 473 N.E.2d 1131, 1135 (1985); Hall v. Hilbun, 466 So.2d 856, 873 (Miss.1985); Ladish v. Gordon, 879 S.W.2d 623, 628 (Mo.Ct.App.1994); Wilburn v. Cleveland Psychiatric Institute, 1998 WL 53936 at 2 (Ohio Ct.App.1998); Spencer v. Seikel, 742 P.2d 1126, 1128 (Okla.1987); King v. Williams, 276 S.C. 478, 279 S.E.2d 618, 620 (1981); Shamburger v. Behrens, 418 N.W.2d 299, 306 (S.D.1988); Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973, 978 (1967); Paintiff v. Parkersburg, 176 W. Va. 469, 345 S.E.2d 564, 565 (1986); Shier v. Freedman, 58 Wis.2d 269, 206 N.W.2d 166, 174 (1973); Roybal v. Bell, 778 P.2d 108, 112 (Wyo.1989).
Table of Cases
Soares v. Vestal, 632 A.2d 647 (R.I.1993)
Hudson v. Napolitano, 575 A.2d 187, 188-89 (R.I.1990)
Richardson v. Fuchs, 523 A.2d 445, 448 (R.I.1987)
Marshall v. Medical Associates of Rhode Island, Inc., 677 A.2d 425 (R.I.1996)
Buja v. Morningstar, 688 A.2d 817 (R.I.1997)
DiFranco v. Klein, 657 A.2d 145, 148 (R.I.1995)
Schenck v. Roger Williams General Hospital, 119 R.I. 510, 515, 382 A.2d 514, 517 (1977)
Marshall v. Tomaselli, 118 R.I. 190, 196, 372 A.2d 1280, 1284 (1977)
Wilkinson v. Vesey, 110 R.I. 606, 613, 295 A.2d 676, 682 (1972)
Bigney v. Fisher, 26 R.I. 402, 403, 59 A. 72, 72 (1904)
Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187, 349 A.2d 245, 248 (1975)
Moon v. United States, 512 F.Supp. 140, 144 (D.Nev.1981)
Hoagland v. Kamp, 155 A.D.2d 148, 552 N.Y.S.2d 978, 979 (1990)
Portillo v. United States, 816 F.Supp. 444, 446 (W.D.Tex.1993)
Priest v. Lindig, 583 P.2d 173, 176 (Alaska 1978)
Tucker v. Meis, 127 N.C.App. 197, 487 S.E.2d 827, 829 (1997)
Cheek v. Domingo, 628 F.Supp. 149, 152 (D.Virgin Islands 1986)
Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187, 349 A.2d 245, 253 (1975)
Parker v. Collins, 605 So.2d 824, 826 (Ala.1992)
Capitol Hill Hospital v. Jones, 532 A.2d 89, 94 (D.C.App.1987)
Williams v. Ricks, 152 Ga.App. 555, 263 S.E.2d 457, 458 (1979)
Advincula v. United Blood Services, 176 Ill.2d 1, 223 Ill.Dec. 1, 12, 678 N.E.2d 1009, 1020 (1996)
Vergara v. Doan, 593 N.E.2d 185, 187 (Ind.1992)
Speed v. State, 240 N.W.2d 901, 908 (Iowa 1976)
Blair v. Eblen, 461 S.W.2d 370, 373 (Ky.Ct.App.1970)
Josselyn v. Dearborn, 143 Me. 328, 62 A.2d 174, 179 (1948)
Stepakoff v. Kantar, 393 Mass. 836, 473 N.E.2d 1131, 1135 (1985)
Hall v. Hilbun, 466 So.2d 856, 873 (Miss.1985)
Ladish v. Gordon, 879 S.W.2d 623, 628 (Mo.Ct.App.1994)
Spencer v. Seikel, 742 P.2d 1126, 1128 (Okla.1987)
King v. Williams, 276 S.C. 478, 279 S.E.2d 618, 620 (1981)
Shamburger v. Behrens, 418 N.W.2d 299, 306 (S.D.1988)
Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973, 978 (1967)
Paintiff v. Parkersburg, 176 W. Va. 469, 345 S.E.2d 564, 565 (1986)
Shier v. Freedman, 58 Wis.2d 269, 206 N.W.2d 166, 174 (1973)
Roybal v. Bell, 778 P.2d 108, 112 (Wyo.1989)