Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
must measure up to the standard of professional care and skill ordinarily possessed by others in
his profession in the community, which is New Bedford, and its environs, of course, where he
practices, having regard to the current state of advance of the profession. If, in a given case, it
were determined by a jury that the ability and skill of the physician in New Bedford were fifty
percent inferior to that which existed in Boston, a defendant in New Bedford would be required to
measure up to the standard of skill and competence and ability that is ordinarily found by
physicians in New Bedford.”
The basic issue raised by the exceptions to the charge and to the refused request is
whether the defendant was to be judged by the standard of doctors practising in New Bedford.
The instruction given to the jury was based on the rule, often called the “community” or
“locality” rule first enunciated in Small v. Howard, 128 Mass. 131, a case decided in 1880. There
the defendant, a general practitioner in a country town with a population of 2,500, was consulted
by the plaintiff to treat a severe wound which required a considerable degree of surgical skill. In
an action against the defendant for malpractice this court defined his duty as follows: “It is a
matter of common knowledge that a physician in a small country village does not usually make a
specialty of surgery, and, however well informed he may be in the theory of all parts of his
profession, he would, generally speaking, be but seldom called upon as a surgeon to perform
difficult operations. He would have but few opportunities of observation and practice in that line
such as public hospitals or large cities would afford. The defendant was applied to, being the
practitioner in a small village, and we think it was correct to rule that ‘he was bound to possess
that skill only which physicians and surgeons of ordinary ability and skill, practising in similar
localities, with opportunities for no larger experience, ordinarily possess; and he was not bound to
possess that high degree of art and skill possessed by eminent surgeons practising in large cities,
and making a specialty of the practice of surgery. . . .’”
The rationale of the rule of Small v. Howard is that a physician in a small or rural
community will lack opportunities to keep abreast with the advances in the profession and that he
will not have the most modern facilities for treating his patients. Thus, it is unfair to hold the
country doctor to the standard of doctors practising in large cities. The plaintiffs earnestly
contend that distinctions based on geography are no longer valid in view of modern developments
in transportation, communication and medical education, all of which tend to promote a certain
degree of standardization within the profession. Hence, the plaintiffs urge that the rule laid down
in Small v. Howard almost ninety years ago now be reexamined in the light of contemporary
conditions. . . .
Because of the importance of the subject, and the fact that we have been asked to abandon
the “locality” rule we have reviewed the relevant decisions at some length. We are of opinion that
the “locality” rule of Small v. Howard which measures a physician’s conduct by the standards of
other doctors in similar communities is unsuited to present day conditions. The time has come
when the medical profession should no longer be Balkanized by the application of varying
geographic standards in malpractice cases. Accordingly, Small v. Howard is hereby overruled.
The present case affords a good illustration of the inappropriateness of the “locality” rule to
existing conditions. The defendant was a specialist practising in New Bedford, a city of 100,000,
which is slightly more than fifty miles from Boston, one of the medical centers of the nation, if
not the world. This is a far cry from the country doctor in Small v. Howard, who ninety years ago
was called upon to perform difficult surgery. Yet the trial judge told the jury that if the skill and
ability of New Bedford physicians were “fifty percent inferior” to those obtaining in Boston the
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