Gambill v. Stroud

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

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

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

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

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

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

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

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

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

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

Justice Jones joins in this dissent. Amendment of Rule 11, Rules of Supreme Court October 20, 1975

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

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

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

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