As medical malpractice defense attorneys, we are often asked: Will the opposing party be able to find an expert to support what is believed to be a baseless claim of malpractice? We must respond that we do not know, but in the United States usually if you are willing to pay enough money, you can find an expert to say almost anything. There is a cottage industry of so-called expert witnesses in this country. The number of health care providers who have made testifying a substantial part of their practice, and even a larger part of their annual income, has grown enormously over the decades. It is not unheard of for some of these experts to advertise their services and testify in almost every state in the Union. Many have testified hundreds and hundreds of times; some up to 500 times. Policing your own profession is a topic for another day, but this topic is about how Nebraska has attempted to protect its health care providers from these legions of expert witnesses for hire, while at the same time protecting the integrity of the judicial system for aggrieved patients.
Many states have taken specific statutory actions to weed out “hired gun” experts. Iowa, for example, requires that the expert witness be specialized in the same area of medicine as the defendant in order to give an opinion. Florida requires a physicians to be licensed in the state in which they testify. Other states require the witness to be engaged in the active practice of medicine. At any rate, there have been various requirements imposed to qualify expert witnesses in the service of justice.
Nebraska long ago tried to address this problem by adopting the so-called “locality rule. In Nebraska, in order to give an opinion about a doctor’s negligence, an expert must be familiar with the standard of care based on the local custom and ordinary practice in the “same community or similar community”. By adopting the locality rule, Nebraska has statutorily enacted protection for health care providers against the “vagabond” experts who troll through the countryside testifying that there is a “national standard of care” (and by golly the health care providers in Nebraska must follow it!) These national-based experts are more than willing to tell juries in rural Nebraska that they must follow the standard ostensibly set by urban physicians or hospitals, or that urban physicians or hospitals in Nebraska must abide by the standards set in larger cities on the East or West Coast. What these purported experts do not recognize is that Nebraska has legislatively safeguarded its health care providers and established that any such expert must be familiar with the standard of care in similar communities, and cannot impose some other community’s standard of care.
The Nebraska Hospital-Medical Liability Act has established the governing principles for evaluating the conduct of a health care provider with a unique twist: “In determining what constitutes reasonable and ordinary care, skill and diligence on the part of a health care provider in a particular community, the test shall be that which health care providers, in the same community or in similar communities engaged in the same or similar line of work, would ordinarily exercise and devote to the benefit of their patients under like circumstances.” Hemsley v. Langdon, 909 NW2d 59 (2018). This has significant implications for any professed expert witness in the State of Nebraska.
The legislative philosophy adopted in Nebraska recognizes that there is not one way to practice medicine or render health care, and their national, regional, and local differences exist. The oft repeated question of the national expert witness is usually along the lines of, “Do you believe there is a national standard of care?” After affirming that leading question, the expert witness then proceeds to give an opinion about whether the health care provider met that standard of care. But the conclusion that there is a national standard should not qualify the expert witness. How does the expert witness know there is a national standard of care that applies to the locality where they are testifying? Simply repeating the mantra “national standard of care” does not make it so. The training, resources, local custom and knowledge in each community differs. Certainly, a medical practitioner in any small community in Nebraska does not have the same resources, knowledge and specialists at their fingertips that exist in bigger cities. Even within larger cities, hospitals have different levels of specialization and available resources. The point is, one size does not fit all.
As a result, expert witnesses may not have the adequate foundation to give an opinion on the standard of care in the same community or similar communities. The Nebraska Supreme Court has recognized this and has even stricken Nebraska-based experts as witnesses for not establishing the foundational basis of being qualified to testify about a local standard of care. Green v. Box Butte, 818 NW2d 589 (2012). In Green, the Supreme Court recognized that some may not like Nebraska’s locality standard and even stated the locality rule is outdated for modern medicine. That is certainly an arguable judgment call. The Court, despite its misgivings about the locality rule, properly pointed out the wisdom of the rule is a public policy debate better addressed by the legislature. They acknowledged the rule is the law in Nebraska and they weren’t free to ignore it, no matter how misguided they thought it was. Applying the locality rule, the Court affirmed the dismissal of the Plaintiff’s case.
So, for now, the locality rule has stood the test of time in Nebraska and lives on.