The concept of a “locality rule” for medical negligence cases exists for many in rather a theoretical world. The reality is that the locality rule in fact remains with us, though not in a way that is always apparent. Local economic and cultural factors continue to exist that vary the standard of care in certain cases to effectively provide a de facto locality rule. And lawyers practicing medical negligence must account for it. These refuges of the locality rule are most readily apparent in cases involving rural hospitals or care provided by providers in small and conservative communities. How did we get here? How did the rule develop, why might we think it doesn’t exist, and how do we account for it in representing our clients?
The “locality rule” as we know it was an outgrowth of the idea that a medical provider in a small community, with limited access to resources, should not be held to the same standard as one in an urban environment, with access to the latest in information and medical technologies. The 1913 case Wharton v. Warner1 defines this distinction as well as any other case:2 that a physician or surgeon impliedly represents that he possesses, and the law imposes upon him the duty of possession and exercising, reasonable skill and learning, that is, such skill and learning as is possessed by the ordinary practitioner in that general locality, measured by the state of medical and surgical science.
That is, the standard may vary around the state.
In reading this rationale from the state Supreme Court, one must consider how challenging it has been to find an expert qualified and willing to testify about the local standard of care. It meant oftentimes fruitlessly trying to find someone from that very same small community to testify that the provider, whom they probably knew, violated the standard of care. On the other hand, defendant insurers had cadres of physicians willing to testify in support of fellow providers from their community (or a substantially similar one) who had met the standard of care.
The Washington State Supreme Court ostensibly drew a line in the sand when it recognized the public policy problems of maintaining varied standards of care when it abolished the locality rule in 1967’s Pederson v. Dumouchel ruling.3 The Court established that the standard of care in Washington for a reasonably prudent practitioner was a national standard. In so doing, it acknowledged the danger to the public with the locality rule by expressing that “[n]egligence cannot be excused on the ground that others in the same locality practice the same kind of negligence. No degree of antiquity can give sanction to usage bad in itself.”4
The Court also recognized that technology was bridging distances that had rationalized the basis for the old locality rule. On its way to doing so, it acknowledged that “there is no lack of opportunity for a physician or surgeon to keep abreast of the advances made in his profession and to be familiar with the latest methods and practices adopted.”5 Back in 1967, this meant the comprehensive coverage of the Journal of the American Medical Association (JAMA) and other journals, access to drug company representatives, “closed circuit television presentations of medical subjects, special radio networks for physicians, tape-recorded digests of medical literature,” and any number of courses served to “keep physicians informed and increasingly to establish nationwide standards.”6 Indeed, the locality rule was outdated already in 1967.
Even so, the Court left some wiggle room for the locality rule that it had pronounced had “no present-day vitality.”7 That is, the standard of care was that of an “average, competent practitioner acting in same or similar circumstances.”8 The “same or similar circumstances” included the “local practice within geographic proximity” that was to remain a “factor” for the jury to consider.9 It was no longer the prevailing factor, but was, and still is, one factor.
The standard of care was codified in 1976 in RCW 7.70.040. The legislature largely adopted the Supreme Court’s language, including the locality rule language. In Washington, a medical provider is subject to liability if they fail to exercise the degree of care, skill, and learning expected of a reasonably prudent healthcare provider at the time, in the same profession or class to which he or she belongs, acting in the same or similar circumstances.10 Expert testimony is required to prove negligence in all but the rarest of cases.11
Today we are sixty-six years further along from Pederson. And fifty-six years from the codification of RCW 7.70.040. JAMA has added nearly a dozen specialty journals; and they all reside online, just like every other medical journal. These and practice resources like UpToDate are universally available on ubiquitous smartphones. Podcasts have replaced tape-recorded digests, and continuous medical education courses can be downloaded and viewed anywhere you have an internet connection. The technological and informational distances that formerly required a locality rule have been further surmounted. The standard of care is supposed to be a national one,12 but as “same or similar circumstances,” economic realities and cultural factors remain significant in defining the standard of care in certain circumstances.
The locality rule lives on in rural hospitals and conservative communities
Vestiges of the locality rule remain in the varied economies and cultures of our state. The economic forces are the ones that impact negligence claims against small hospitals in rural communities, such as critical access hospitals. And as far as cultural forces, juror attitudes in many counties weigh heavily against medical negligence plaintiffs. This makes only the most egregious case a viable medical negligence case and acts to effectively drive down the standard of care as compared to that in many but not all urban, populous counties.
In considering the existence of the locality rule as it applies to hospital malpractice, one must consider the economic realities of rural emergency medicine. To begin with, the standard of care in rural hospitals is governed by a combination of governing boards, accrediting agencies, and state licensing agencies. The primary purpose of the organized medical staff is to ensure the quality of clinical practice in the hospital. Joint responsibility exists for the medical staff, the board, as well as the administration to ensure that all applicable rules are complied with. Bylaws must be reviewed and updated periodically as technology and the community evolve. The general rules regarding the quality of care and scope of practice in the hospital setting are set forth by the accrediting agency. Finally, the state also has quality standards for the institution to maintain its licensure. These are overseen by the Medical Quality Assurance Commission (MQAC) and can be found in WAC chapters 246-320.
The medical staff bylaws will include any written policies regarding response time and expectations. The hospital will also have a written list of approved services. In critical access hospitals,13 those services are limited to care which can be provided with anticipated hospital stays of 72 hours or less. That rules out complex procedures for the most part but would not exclude, for example, C-sections, as the usual length of stay for that is less than 72 hours.
Community standards are the demands that dictate much of the level of care provided at any hospital. And the reality is that many facilities cannot provide 100% of appropriate care to 100% of the population. Simply put, rural hospitals simply cannot provide surgical services 24/7. They may not even have a surgeon on staff but would instead be prepared to triage and transfer and likely have a relationship with a secondary or tertiary hospital to accept such transfers. Each community must prioritize and ration care. Consider, for example, a birth injury case against a hospital district in Eastern Washington. If the county has 40,000 people, the birth rate may be about 400.14 With the total birth rate of about one per day, most of those being uncomplicated, the standard would not require 24/7 in-house surgical services. In-house surgical care requires an anesthesiologist or CRNA, OR nursing and tech, and a physician. That is about 5-6 people. Now, if the fetus or mother suffers from a condition that occurs at a rate of 1 in 1,000 deliveries, the occurrence would arise every 3 years. It becomes financially untenable for a small hospital to keep those providers on-site for situations that occur with relative rarity. On-call pay is the only real way for small facilities to provide coverage. On-call, for which pay is much lower than in-house pay, allows for some flexibility, but the hospital’s bylaws will dictate that the providers be available in 30-45 minutes or so. In the event this condition occurs, there is a real possibility that a family will suffer a tragic outcome though the medical staff and administration were performing their duties within the standards of the community. This is a terrible cost for the family and is the result of the funding models for our hospitals and their having to ration care.
So, when evaluating a malpractice case against a rural hospital involving a delay in treatment, there are a couple of things you must consider. First, if you are looking for a persuasive expert, consider looking for one who practices in “the same or similar circumstances”—that is, a similarly rural hospital. You will also need to get a copy of the medical staff bylaws to see what availability the medical staff expects of its providers. Additionally, in your discovery you should also learn which agency accredits the potentially at-fault hospital, find out when the last survey was done, and whether it revealed any deficiencies.
Finally, cultural factors affect the standard of care with the result of providing different standards of care. We find jurors in small or conservative venues are more hesitant to find fault in the care of a local medical provider. A look at the Insurance Commissioner’s 2022 Medical Malpractice Annual Report15 illustrates the practical effect of these cultural influences. For example, the average paid indemnity in Spokane County for a medical negligence case from 2017 to 2022 was approximately half of that paid in King County, Pierce County and the Puget Sound metro area. While costs of living and healthcare factor into that valuation, jurors’ attitudes are a significant factor. Folks in Spokane County do not suffer fundamentally different injuries from plaintiffs in Western Washington. Over the long run, jurors’ negative attitudes against medical negligence plaintiffs (or warm attitudes towards providers in their small community) create a pattern of defense verdicts that effectively operates to drive down the standard of care in the community.
There are some ways to address these cultural variations among localities. Everyone who reviews a medical negligence case has to consider the venue where the negligence occurred. Even before you get to damages, you have to consider how much weight the local jurors are going to give to your expert’s standard of care testimony. One way to address that is to run focus groups in the venue and apply the feedback. A number of options exist for running an affordable focus group early in a case or as you develop the evidence: Zoom focus groups organized via Craigslist or eJury.com, or focus groups run by our esteemed EAGLE brethren.
While the Supreme Court officially did away with the locality rule many decades ago, as a practical matter it still exists. Economic forces in rural communities lead to variations in the standard of care for hospitals’ delivery of medicine, while local cultural forces influence juror perspective and jury verdicts. It is important to be prepared to account for Washington’s de facto locality rule in your medical negligence cases.
EAGLE Carl-Erich Kruse is a partner at CMG Law in Seattle, which limits its practice to medical negligence cases. He is co-chair of the WSAJ Medical Negligence section.
1 75 Wn.2d. 470 (1913).
2 Aside from the archaic gendered language.
3 Pederson v. Dumouchel, 72 Wn.2d 73, 431 P.2d 973 (1967).
4 Pederson v. Dumouchel. 72 Wn.2d at 78.
5 Id.
6 Id. at 78-79, quoting Louisell and Williams, The Parenchyma of Law (Professional Medical Publication, Rochester, N.Y.1960) p. 183.
7 Id. at 78.
8 Id.
9 Id.
10 RCW 7.70.040. Notably, this was codified in 1976.
11 See Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216,228, 770 P.2d 182 (1989). Expert testimony is unnecessary when the facts are “observable by a [layperson’s senses and describable without medical training,” Harris v. Groth, 99 Wn2d 438,449 663 P.2d 113 (1983), citing, Bennett v. Department of Labor and Industries, 95 Wn.2d 531,533, 627 P.2d 104 (1981), or when the court finds that the doctrine of res ipsa loqutor applies. See Pacheco v. Ames, 149 Wn.2d 431, 436, 69 P.3d 324 (2003).
12 Beware Boyer v. Morimoto, 10 Wn.App. 2d 506, 449 P.3d 285 (2019) (holding in part that the standard of care is a national one, but out-of-state experts must identify how they know the state follows the national standard). This case was capably discussed in Christopher Love and Thomas Vertetis, “Boyer v. Morimoto: Ensuring your nonresident Medical Experts are up to Washington’s Standards,” Trial News, May 2020.
13 See, e.g. https://doh.wa.gov/public-health-health-care-providers/rural-health/rural-health-systems
