Opinion

Gambill v. Stroud

  • 258 Ark. 766
  • 531 S.W.2d 945
Court
Supreme Court of Arkansas
Filed
Jan 26, 1976
Status
Published
Author
Smith
On the bench
Fogleman, Byrd, Smith, Jones, Roy
Cited by
27 cases

stating similarity depends not on size or location of community, but on “medical facilities, practices and advantages” available in community

How later courts described this case

  • stating similarity depends not on size or location of community, but on “medical facilities, practices and advantages” available in community
  • explaining purpose of locality rule and declining to adopt national standard of care
  • “If the medical profession recognizes that there are standard treatments, which should be utilized nation-wide this fact should be readily susceptible of proof under the similar locality rule[.]”
  • “The -4- opportunities available to practitioners in a community are certainly matters of fact and not law and may be shown by evidence under our own locality rule.”

Written by the judges who cited it.

The opinion

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

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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