Swan v. Lamb , 1978 Utah LEXIS 1391 ( 1978 )

CROCKETT, Justice:

(concurring specially).

I concur in the conclusion of the main opinion that the trial court should have permitted Dr. Rocovich to testify. But I state separately my thoughts as to the view that the trial court should take in determining the competency of testimony of that character. I am in general agreement with the view that the trial court’s strict adherence to what is called the “local community” standard, coupled with his statement that the witness must demonstrate “personal contact or experience within the state of Utah” is too restrictive and led to error in rejecting the proffered testimony.

In arguing for the “local community” rule, defendants assert that in rural areas and small towns physicians do not have various advantages, including educational, clinical and hospital facilities, that are available in large cities. I do not doubt that this is a fact to be reckoned with in appropriate cases, but I do not see that it has any application in this one. It is unnecessary to my purpose herein to make a separate analysis of our cases referred to in the main opinion. Notwithstanding some statements in those cases about standards of the locality, if each case is analyzed on the basis of the adjudication it makes on its own facts, and the principles of logic and justice that underlie the decision, it is my opinion that it will be seen that they do not stand for any such narrow and restrictive rule as the standard of care in the particular locality. The fair and logical conclusion to be drawn from our cases is that the rule to be applied in Utah, then and as it exists now, is the “similar locality” rule. This is illustrated by the fact that in the case of Riley v. Layton,¹ the Tenth Circuit Court of Appeals, not without justification, indicated its view of the Utah law as supporting the “similar locality” rule.

In spite of the acknowledgment that some of our prior decisions appear to give lip service and perhaps place too much emphasis on what knowledge a witness may or may not have had as to standards in a particular locality, if the rulings are looked at as they apply to the particular cases, I do not see any necessity for a sweeping overruling of them; and I have reservations in so agreeing because I think their underlying logic and sense of justice and their treatment of more important factors than mere geography and the proximity of practitioners may have value in application to similar fact situations.

In regard to the use of expert witnesses, there are two evils to be guarded against: on the one hand, that designing persons may make frivolous or spurious claims and that unqualified professionals or outright charlatans can be found to give supporting testimony. On the other, if in safeguarding against that evil, the exclusion is too restrictive, sometimes persons with a bona fide grievance may be deprived of access to the courts for a fair adjudication thereon.² The illogic and unfairness of the strict “local community” limitation is emphasized when it is realized that in many of our sparsely populated areas there is but one, or perhaps two, doctors in a given locality; and thus as a practical matter it might be virtually impossible to obtain objective analysis and adversarial testimony, even where justified. In attempting to strike a fair and reasonable balance between the opposing points of view just mentioned, the fundamental question to be addressed is whether the qualifications of a proffered witness provides sufficient assurance that he can and will give helpful and reliable assistance in determining whether a claim is genuine or spurious.

It should be realized that there are some aspects of the practice of medicine that are so universally known and followed that they are accepted as standard throughout the profession, whether metropolitan or rural. This has become more especially so because modern developments in communication and transportation have so facilitated the exchange of knowledge and the availability of facilities and equipment that the trend is toward making our country almost as one large community. If it appears that the critical issue in a given case relates to some such generally known and accepted practice, then what is referred to as the “national standard” could properly be applied.³

In connection with what has just been said, it is also appreciated that in other specialized aspects of the practice of medicine, there are in fact different standards in different localities. In larger metropolitan areas where there are educational institutions, hospitals and clinics, so that there are available more advanced facilities and equipment, and higher degrees of specialization in particular fields, and higher earnings for practitioners, there are undoubtedly higher standards than in less favored areas. When this fact situation has a bearing on the problem involved, that is an important factor to be taken into account.

The objective of determining the competency of proffered testimony and thus providing a means for a full and fair consideration of such an alleged grievance and proper defenses thereto should not depend on any particular geographical location, nor upon comparison of numbers of population. It should involve an inquiry and analysis of the particular fact situation in relation to all of the facts and circumstances relating to the alleged wrong, the standards as to the practice of medicine, and the defendant’s conduct in relation thereto.⁴ Such a problem involves but a specialized application of the standard of conduct so universally imposed by the law: of requiring the degree of care which the ordinary reasonable and prudent person would observe under the same or similar circumstances.⁵

Inasmuch as the circumstances can never (practically never) be exactly the same, it follows inescapably that the only fair and reasonable test requires consideration of the total circumstances, including the assumed education and experience of a physician and all other pertinent factors in a reasonably “similar community”. It is further my judgment that the excellent and extensive briefs filed by the respective parties in this case, reflecting the views of numerous courts and authorities,⁶ are all pretty much in harmony with the general proposition just stated, which underlies the logic and justice of our own cases.

Consistent with the foregoing observations, if a proffered witness has the basic qualifications in education and experience and is familiar with the relevant factors and standards in a community or a locality which are reasonably comparable to that of the forum, that is, in a generally similar metropolitan community, (or rural, as the case may be) so that he should be able to give reliable expert assistance to the court and jury, he should be permitted to testify.⁷

In considering the ruling of the trial court about which the plaintiff complains, in the light of what has been said above, it is my judgment that in passing on the proffered testimony of Dr. Rocovich, the trial court, not without considerable justification, because of expressions in our prior cases, was nevertheless mistaken and was too restrictive in the views he expressed that under Utah law he was bound by the “local community” standard and in his statement that the witness must demonstrate “personal contact or experience within the state of Utah.” Whereas application of the proper “similar community” rule leads to these conclusions: that there is sufficient general similarity between the Salt Lake City area and that of Los Ange-les that they are reasonably comparable insofar as standards of practice are concerned; and that the credentials of Dr. Rocovich, as set forth in the main opinion, show that he had sufficient qualifications and experience that he should be permitted to testify and leave the matter of his credibility to cross-examination, opposing testimony, and finally, to the jury.

1 . 329 F.2d 53.

2 . That all persons should have access to the courts, see Utah Const., Art. I, Sec. 11.

3 . Nacarrato v. Grob, 384 Mich. 248, 180 N.W.2d 788; Kronke v. Danielson, 108 Ariz. 400, 499 P.2d 156: That this is particularly true as to specialists, see Restatement of Torts 2d, Sec. 299A; and 37 A.L.R.3d Annot. on Nonlocal Testimony 420.

4 . See 40 Fordham L.Rev. 435, 439 and “Medical Specialities and the Locality Rule,” 14 Stan. L.Rev. 884, 890 (1962).

5 . Thus aptly stated by Judge Weaver for the Washington Supreme Court in Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973.

6 . See e. g. Waltz, The Rise and Gradual Fall of the Locality Rule in Medical Malpractice Litigation, 18 DePaul L.Rev. 408; 37 A.L.R.3d 426.

7 . Id.