COLEMAN, J. (to affirm).

Plaintiff has sued for damages claiming that his blindness was caused by defendant Barrios' negligence. The jury returned a verdict of no cause of action which the Court of Appeals affirmed.

The appeal to this Court reduces into one viable issue:

Did the trial judge err in refusing to admit into evidence the testimony of an expert witness, a specialist, concerning the standard of care of a general practitioner in Houghton, Michigan or similar communities?

The testimony was properly rejected in what was an exemplary trial.

Although much has been written in this case about the "locality rule", it is surplusage because the circuit judge did exactly what plaintiff urged in his complaint. The judge instructed the jury to consider the standard of care employed by Dr. Barrios not only in light of the standards of Houghton but also of similar communities. Plaintiff received that for which he asked. We cannot properly make a different case at this level of the proceedings and thereby adopt a new rule to apply to a situation which occurred ten years ago.

The facts of this case are important and all were before the jury. They reveal virtually a miracle not only in saving the life of a baby born after only a little over five months gestation, but also in saving him from brain damage.

Plaintiff was born almost four months prematurely on November 19, 1967 and weighed 950 grams (2 lbs, 1 oz.). His chances of living were one in ten and, if he did live, there was an even chance that some brain damage would result. The mother's prebirth difficulties resulted in the child being starved for oxygen. His exposure to the operating room air doubled his blood oxygen level. There was testimony that the child probably suffered retrolental fibroplasia (RLF) immediately upon birth and prior to placement in an Isolette.

Dr. Barrios ordered the child placed in an incubator and given oxygen in order for him to survive. He considered it necessary to prevent brain damage or injury to the cardio-respiratory system. His main concern was to keep the child alive:

" Q. Doctor, was that your first, your main and your continuing main consideration in your care and treatment of James Siirila?

" A. His life.

" Q. Doctor, is there ever anything that takes any precedence over life in the care of a child or a person?

" A. No.

" Q. Doctor, what are the main reasons — causes of death of premature babies?

" A. Anoxia. Lack of oxygen.

" Q. That comes from what, poor respiratory problems?

" A. Yes."

Dr. Barrios visited the child 30 to 45 times during the first two days of his life and checked on him frequently each day after that. He consulted often with his associate, Dr. De Castilla, who had held a residence in pediatric surgery at Children's Hospital in Detroit.

The child was removed from oxygen or the dosage reduced on several occasions without success until December 29 when he was finally removed from the Isolette and returned only as his condition required. On one occasion, the child had been removed from oxygen for seven days but became cyanotic so that he had to be placed back in the oxygen for survival. Removal to another city would have meant almost certain death.

Plaintiff was in the hospital for nearly three months. Following release, his mother noted that plaintiff was not seeing well. Dr. Barrios discovered a scar on the retina and recommended that Dr. Matthews, a Marquette pediatrician, examine the child. This led to an appointment with an opthalmologist and the discovery that plaintiff had retrolental fibroplasia.

At trial, Dr. Matthews was presented as a witness for plaintiff. Defendant objected and the court decided "to prohibit the doctor from testifying as to the standard of care in this community or similar communities on the basis that he's a specialist". Plaintiff did present a Dr. Carson who had practiced in the area since 1952. He said keeping a premature infant under oxygen treatment without regard to retrolental fibroplasia departed from the standard of practice in the area.

Defendant presented Dr. Repola who was on the St. Joseph Hospital staff. He said Dr. Barrios acted according to acceptable standards. He said the child needed "the oxygen to live and so that it won't have brain damage". He believed plaintiff to be one of those premature babies who incur retrolental fibroplasia without ever being treated with oxygen, a result of oxygen starvation in the mother's womb.

The trial judge described Dr. Barrios' duty to plaintiff in this manner:

"You are instructed, members of the jury, that the law requires a doctor to possess and exercise reasonable skill and care in the treatment and care of his patients. Although this requirement does not mean that a physician must possess and exercise the highest degree of learning and skill in his profession, it does require that he possess and exercise that degree of skill and learning which conforms to the standard of practice in the same or similar communities. That is, he must possess and exercise that degree of skill and learning which conforms to the average or ordinary learning and skill in his profession in the same or similar communities.

"You are further instructed that for you to find that the defendant, Dr. Barrios, in his care and treatment of plaintiff, James Scott Siirila, did not use reasonable skill or care, plaintiff must show by a preponderance of the evidence as follows: One, that defendant doctor did some particular thing or things that a doctor of ordinary skill, care and diligence, in the same or similar community, would not have done under like or similar circumstances. Or, two, that defendant doctor did some particular thing or things in a manner that a doctor of ordinary skill, care and diligence, in the same or similar community, would not have done under like or similar circumstances. Or, three, that defendant doctor failed to do some particular thing or things that a doctor of ordinary skill, care and diligence, in the same or similar community, in the exercise of due care, would not [sic] have done under the same or similar circumstances. And, fourth, it must be further shown that such conduct was the proximate cause of the injury suffered." (Emphasis added.)

He also said the jury could not measure "the standards of practice as they affect Dr. Barrios" by holding him "to the standards of board certified pediatricians and opthalmologists".

Plaintiff's complaint said defendant was "under a duty to render care and treatment * * * in accordance with the standard of practice in this and similar communities". The judge instructed the jury that "the law requires a doctor to possess and exercise reasonable skill and care" in treating patients. He must "possess and exercise that degree of skill and learning which conforms to the average or ordinary learning and skill in his profession in the same or similar communities".

These instructions accurately reflect Michigan precedent. In Lince v Monson, 363 Mich. 135, 140-141; 108 N.W.2d 845 (1961), the Court used this standard:

"In order to submit a case of alleged malpractice to the jury, the plaintiff must produce medical testimony to the effect that what the attending physician or surgeon did was contrary to the practice in that or similar communities, or that he omitted to do something which was ordinarily done in that or similar communities." Delahunt v Finton, 244 Mich. 226, 229, 230; 221 N.W. 168 (1928).

Skeffington v Bradley, 366 Mich. 552, 554; 115 N.W.2d 303 (1962), followed Lince in requiring that there be medical testimony "showing or tending to show that what the defendant did or omitted doing was contrary to customary practice by reputable members of the medical profession practicing under similar conditions". Also see Wrobel v Cotman, 372 Mich. 383; 126 N.W.2d 723 (1964), Daniel v McNamara, 10 Mich. App. 299; 159 N.W.2d 339 (1968), and Mitz v Stern, 27 Mich. App. 459; 183 N.W.2d 608 (1970).

The jury was properly instructed on Dr. Barrios' duty to plaintiff. The remaining question is whether the jury should have been permitted to consider the testimony of two specialists in measuring the standard of practice. The trial judge correctly refused to permit this.

In Naccarato v Grob, 384 Mich. 248, 252; 180 N.W.2d 788 (1970), plaintiff sued two Detroit pediatricians for failing to diagnose a certain disease. Plaintiff's experts were from Chicago and Los Angeles; defendants' were from Detroit. The jury returned a verdict for plaintiff. The trial judge overturned this because "the testimony of the plaintiff's experts could not be considered by the jury as worthy of belief regarding the standards of actual private practice of the physicians in the Detroit area during the time periods in question".

In reinstating the verdict, this Court relied on Wood v Vroman, 215 Mich. 449, 465, 466; 184 N.W. 520 (1921), which said a specialist is "obligated to bring to the discharge of his duty that degree of skill and knowledge possessed by physicians who are specialists in the light of present day scientific knowledge". This Court then said:

"The reliance of the public upon the skills of a specialist and the wealth and sources of his knowledge are not limited to the geographic area in which he practices. Rather his knowledge is a speciality. He specializes so that he may keep abreast. Any other standard for a specialist would negate the fundamental expectations and purpose of a speciality. The standard of care for a specialist should be that of a reasonable specialist practicing medicine in the light of present day scientific knowledge. Therefore, geographical conditions or circumstances control neither the standard of a specialist's care nor the competence of an expert's testimony."

Dr. Barrios did not hold himself out as a specialist. He should not be judged by a specialist's standards.

In Rytkonen v Lojacono, 269 Mich. 270, 274; 257 N.W. 703 (1934), plaintiff's husband had died following surgery. One allegation was that defendant had failed to properly secure a tube which slipped inside the husband's body. The man who performed the autopsy, Dr. Talso, was permitted to testify how he would have secured the tube and about practices he had observed at famous hospitals:

"Dr. Talso's testimony in this respect was error. Defendant is not to be charged with the peculiar skill or methods of practice used in famous medical institutions. Nor is the treatment another physician would have used under the circumstances the test. Wood v Vroman, 215 Mich. 449, 465. The rule is firmly established that defendant was bound to use the degree of diligence and skill which is ordinarily possessed by the average of the members of the profession in similar localities. Miller v Toles, 183 Mich. 252; LRA 1915C, 595 [150 NW 118 (1914)]; Czajka v Sadowski, 243 Mich. 21 [ 219 N.W. 660 (1928)]. Dr. Talso's testimony was not cured by a general statement that his methods have been used by physicians in the same and similar communities. He did not say other methods were not recognized as proper."

One defendant in Callahan v Beaumont Hosp, 67 Mich. App. 306, 310; 240 N.W.2d 781 (1976) (a surgeon named Feldstein), had treated plaintiff in the emergency room for an ankle injury. The Court said Naccarato "was grounded to a large degree on the reliance and expectations of the public with respect to the skills possessed by a specialist". A specialist "represents to the public that he has special knowledge and skills not possessed by a general practitioner and that he also keeps abreast with the advances in his specialty".

Plaintiff's expert witness was a surgeon. The trial judge refused to let him testify as to the standards of care to be imposed on the defendant. In affirming, the Court of Appeals said:

"Dr. Feldstein, although a surgeon, was not practicing surgery or utilizing any special skills of a surgeon when he treated the plaintiff. Rather, in wrapping the plaintiff's ankle in an Ace bandage and telling her to take aspirin for the pain, Dr. Feldstein was acting in the same manner as would any other doctor on duty at the emergency room of the defendant hospital. Furthermore, the injury suffered by the plaintiff was not an injury requiring treatment by a surgeon, nor is there any indication that the knowledge and skills that Dr. Feldstein gained by virtue of his specialization in any way better prepared him to examine and treat the plaintiff's injury. Under these circumstances, there is no holding out of special skills or knowledge on the part of Dr. Feldstein, nor is there any reliance upon such special skills or knowledge by the plaintiff. As a result, we decline to extend the holding of the Naccarato decision to the facts of the present case, since the rationale underlying that decision has no application here."

The defendant was held to "`that degree of skill and diligence ordinarily exercised by the average members of the medical profession in the same or similar localities with due consideration to the state of the profession at the time'".

We agree with Justice WILLIAMS that "a general practitioner is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner of the same class, acting under the same or similar circumstances". However, his extended discussion of the "locality rule" is unnecessary and diverting. As demonstrated above, a doctor's conduct is to be measured against the degree of skill and learning expected of reputable doctors practicing under similar conditions. We do not limit consideration to the particular locality but include similar communities. We require that the doctor's actions conform to customary practice of the medical profession. There is nothing impermissibly parochial or restrictive about the Michigan standard. It states a reasonable method by which to judge the doctor's conduct. The trial judge followed the law.

Justice WILLIAMS concludes that reversible error occurred when the jury was told that the specialist's testimony could not be used to judge Dr. Barrios' conduct. I disagree. This would be a new rule of law which would inure to the benefit of no one.

Expert witnesses are used to assist the jury in determining by what standards the defendant's conduct should be examined. Dr. Barrios held himself out as a general practitioner. He did not claim to be a specialist; he should not be judged by their standards. The specialist's testimony was heard by the jury and was excluded only to the extent that the jury could not use it to measure "the standards of practice as they affect Dr. Barrios". The case was fully and properly presented to the jury and its verdict should stand. We should not act as a superior, if remote, second jury.

This is a very difficult case because one of the principals was an infant. It is natural to feel deep sadness for the child and family. Undoubtedly the jurors were similarly moved. However, from the evidence presented, they may have concluded that without Dr. Barrios' efforts James Siirila would not have lived at all. Also, from the fully developed evidence they could not fix blame for the sight problem upon defendant doctor. This was an emergency situation demanding that tough decisions be made. Dr. Barrios' main concerns were preserving life and preventing brain damage. There was testimony that the sight damage probably took place because of the lack of oxygen in the mother's womb. The jury heard all the facts in 17 days of testimony and found that Dr. Barrios had not violated his duty.

Included in the testimony was a cross-examination of Dr. Barrios concerning the fact that he "didn't seek any advice from any pediatrician 100 miles away by picking up a telephone to say to him * * * are there any special problems, things that I should be looking out for?" Dr. Barrios made the point that he "was treating jointly this patient with Dr. De Castilla * * * [who] had experience in pediatrics". He said:

"I knew there was going to be problems, but in my judgment, the child started doing well, and any transfer or any change of what has been established, you know, or a nursery, would be detrimental to the baby."

The jury thus had available testimony concerning whether Dr. Barrios should have called Marquette for advice. It is not proper for us, by hindsight, to say that the jury should have concluded other than as they did. They had the information which my colleague argues they should have had.

Unfortunately, we cannot bring back plaintiff's sight. Neither can we in good conscience affix blame on Dr. Barrios in a suit charging medical malpractice where the jury found none.

Importantly, we should limit ourselves to the only real issue before us: the propriety of admitting the expert testimony of the Marquette specialist Dr. Matthews regarding the standard of medical care by general practitioners in Houghton or similar communities.

We would not adopt the new rules proposed and cause them to be applicable to facts which occurred ten years ago.

Affirm.

FITZGERALD and LINDEMER, JJ., concurred with COLEMAN, J.

WILLIAMS, J. (to concur).

We originally granted leave to appeal in this case to consider whether the standard of care for general practitioners should be judged by the practice in the same or similar communities. Counsel for the defense has cogently argued that the issue of the viability of the locality rule as a measure of the standard of care of general practitioners was not preserved for review. He accurately pointed out that plaintiffs' complaint alleged that Dr. Barrios had violated the standard of care of the same or similar communities, and that no instruction was ever requested which would require a different standard of care.

This is indeed correct. However, both before the Court of Appeals and our Court, the parties treated the locality rule as the salient problem and indeed the decision of the Court of Appeals was directed almost exclusively to this question. Therefore, the issue has received the benefit of extensive discussion and the parties have had an opportunity to be heard on the issue. All the facts relevant to appellate determination were developed at trial. Further, this is not a case where the trial judge might have cured an error if an objection were raised or if an instruction were requested, inasmuch as the trial judge had volunteered, when the question of standard of care was first raised, "this Court is not going to venture into a new realm of law".

It is apparent that objections or requests for instructions based on a new legal theory would have been fruitless in that context. There is nothing to be gained by requiring parties to engage in exercises in futility in order to benefit from the appellate process.

Further, our state has adopted a liberal approach to the amendment of pleadings, "when justice so requires", even after judgment. GCR 1963, 118. The ability to grant leave for such revisions is not limited to the trial court, but may be exercised by the Court of Appeals, GCR 1963, 820.1(1) and by our Court, GCR 1963, 865.1(1). Even in this case, sufficient evidence was introduced on the standard of care, albeit by the back door as counsel suggested the testimony was entered on the basis of proximate cause, to permit such amendment.

In addition, had plaintiff pled his case to indicate the standard of care allegedly violated by defendant was not that of the same or similar communities, it is likely he would have had to amend them to conform to the existing law anyway, in order to get into court. Had he chosen instead to appeal on the issue of the pleadings, this would have meant further delay in bringing the matter to trial, and would have required the appellate court to review the issue without the advantages of full development of facts now here before us. In our zeal to adhere to technical requirements, we should not forget that plaintiffs do not file cases to have to appeal them, and parties, if at all possible, do not structure their cases to require a statement of new law before they can be heard. To now require that pleadings restrict the scope of appellate review would be contrary to the spirit if not the letter of our own court rules.

Therefore, this case falls within that class in which this Court has not hesitated to review an issue which may not have been clearly presented or preserved below.

"The general rule that a question may not be raised for the first time on appeal to this Court is not inflexible * * *. When consideration of a claim sought to be raised is necessary to a proper determination of a case, such rule will not be applied." Prudential Life Insurance Co v Cusick, 369 Mich. 269, 283, 290; 120 N.W.2d 1 (1963), quoting Dation v Ford Motor Co, 314 Mich. 152, 160; 22 N.W.2d 252 (1946).

The "issue has been adequately presented and briefed", Perin v Peuler, 373 Mich. 531, 534-535; 130 N.W.2d 4 (1964), and "the record is complete so that the taking of further testimony is not required for the determination of the question". Meek v Wilson, 283 Mich. 679, 689; 278 N.W. 731 (1938). "[T]he question is one of law, and all of the facts necessary for its resolution have been presented." Kahn-Reiss, Inc. v Detroit Northern Savings Loan Association, 59 Mich. App. 1, 12; 228 N.W.2d 816 (1975).

"[T]his Court * * * has often asserted the right to consider manifest and serious errors although objection was not made by the party who appeals." People v Dorrikas, 354 Mich. 303, 316; 92 N.W.2d 305 (1958). This is but one reason for our Court so acting, and such review has been extended in both civil and criminal cases. People v Snow, 386 Mich. 586, 591; 194 N.W.2d 314 (1972).

We therefore proceed to the merits.

The important question in this case is whether Michigan should adopt, as a number of jurisdictions already have adopted, a rule for the standard of care of a general practitioner in keeping with the realities of the day and the high standards of the medical profession. The old rule is that the general practitioner must adhere to the standard of care in the same or similar communities. We would follow the lead of other jurisdictions and reject this approach.

We would hold that the test in Michigan henceforth shall be that a general practitioner is under duty to use that degree of care and skill which is expected of a reasonably competent practitioner of the same class, acting under the same or similar circumstances, having in mind (a) the state of the art for the particular medical situation, (b) whether a specialist should reasonably have been consulted and (c) such local factors as might be pertinent.

I — THE REASON FOR THE LOCALITY RULE V MEDICAL PROGRESS

Except for rare cases in which the facts may be understood by nonmedical personnel, Lince v Monson, 363 Mich. 135, 141; 108 N.W.2d 845 (1961), it is the general rule that a case of medical malpractice as opposed to other negligence may not be established without expert testimony "of those learned in such matters". Zoterell v Repp, 187 Mich. 319, 330; 153 N.W. 692 (1915); Wood v Barker, 49 Mich. 295, 298-299; 13 N.W. 597 (1882). Such testimony has generally been required to show that what the defendant general practitioner did "was contrary to the practice in that or similar communities, or that he omitted to do something which was ordinarily done in that or similar communities". Delahunt v Finton, 244 Mich. 226, 360; 221 N.W. 168 (1928). Winchester v Meads, 372 Mich. 593, 598; 127 N.W.2d 337 (1964).

It has been observed that the locality rule "is a doctrine peculiar to American law", Comment, Standard of Care for Medical Practitioners — Abandonment of the Locality Rule, 60 Ky LJ 209, 210 (1971), with its origin in the vast distances characteristic of our country and the apparent differences between urban and rural practice in the 19th century.

First introduced in 1870 in Kansas, the locality rule mandated that a physician in a rural area should not be held to the same standard of care as one in a larger metropolitan area. The Court reasoned that in the latter situation there is a greater opportunity to perform and observe surgical procedures and treat more types of diseases. Tefft v Wilcox, 6 Kan. 46 (1870), cited in Recent Decisions, Torts — Willingness to Abrogate the Locality Rule in Medical Malpractice Suits Indicated, 43 Miss LJ 587, 588 (1972).

The rationale was accepted in Small v Howard, 128 Mass. 131, 136; 35 Am R 363 (1880), emphasizing that the physician in "a small country village" would seldom be required to perform difficult operations. Further justification for applying a different standard appeared in a Kentucky court's observation that since the most talented physicians would turn to the more lucrative cities for employment, "the practitioners in rural localities have not the same high degree of skill, or knowledge, or education that may be found in large cities and populous communities". Burk v Foster, 114 Ky. 20, 25; 69 S.W. 1096, 1097 (1902).

In most states some form of the locality rule still exists. E.g., Bailey v Williams, 189 Neb. 484, 486; 203 N.W.2d 454, 456 (1973); Goedecke v Price, 19 Ariz. App. 320, 322; 506 P.2d 1105, 1107 (1973); Horton v Vickers, 142 Conn. 105, 113; 111 A.2d 675, 679 (1955). See 60 Ky LJ 209; Note, Negligence — Medical Malpractice — The Locality Rule, 18 DePaul L Rev 328, 332, fns 13, 14 (1968); Restatement Torts 2d, § 299A.

However, the rule has been subjected to both intensive criticism and extensive change, reflecting progress in technology and communication, and changing attitudes of the medical profession itself.

Perhaps one of the earliest decisions rejecting dogmatic application of the rule was Viita v Dolan, 132 Minn. 128, 136-137; 155 N.W. 1077, 1081 (1916). Although unique at the time, its affirmation of an instruction holding locality of the defendant physician as only "among the circumstances to be considered" in evaluating the physician's conduct has proved to be a bellwether of modern reasoning. The court observed that the physician or surgeon in a village receives ample opportunity for advancement with the work of medical societies, journals, books and experience in hospital work putting "the country doctor on more equal terms with his city brother. He would probably resent an imputation that he possessed less skill than the average physician or surgeon in the large cities." 132 Minn. 137; 155 N.W. 1081.

It is evident that today's physician operates within a milieu in which the "coach and four", Wiggins v Piver, 276 N.C. 134, 140; 171 S.E.2d 393, 396 (1970), has been replaced by sophisticated communication and improved transportation. "[M]edical journals, closed circuit television presentations, special radio networks for doctors, tape recorded digests of medical literature, and current correspondence courses", 23 Vand L Rev 732, are not uncommon.

All licensed physicians meet minimum standards required by state licensing boards. The increasing excellence of medical schools and the free interchange of scientific information have a "consequent tendency to harmonize medical standards throughout the country". Cook v Lichtblau, 144 So.2d 312, 315 (Fla App, 1962), quoting Montgomery v Stary, 84 So.2d 34, 39 (Fla, 1955).

Development of the locality rule preceded accreditation of medical schools, which began in 1906 under the AMA Council on Medical Education. Since 1942, such accreditation has been controlled by the national AMA Liaison Committee on Medical Education and the Association of American Medical Colleges. In 1907 there were 160 medical schools and only 82 were graded acceptable. Compare this to the 1968-69 record of 99 medical schools, with 85 fully accredited four-year schools granting the MD degree; 6 accredited two-year schools of basic medical sciences; and 8 under development. 23 Vand L Rev 733, fn 17.

"The `locality rule' (never recognized in England) had its origin in the very old and far away 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 principal 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." Wiggins v Piver, 276 N.C. 134, 139; 171 S.E.2d 393, 396 (1970).

It was even recognized early that certain procedures, such as the application of plaster casts and the treatment of fractures, should not materially differ from locality to locality, Geraty v Kaufman, 115 Conn. 563, 574; 162 A 33, 37 (1932), or even from nation to nation. Lewis v Johnson, 12 Cal.2d 558, 561; 86 P.2d 99, 101 (1939). Riley v Layton, 329 F.2d 53, 57 (CA 10, 1964); Murphy v Little, 112 Ga. App. 517, 523; 145 S.E.2d 760, 764 (1965).

Uniform and improved levels of medical practices must inevitably result from the encouragement of continuing medical education, the prevalence of regional medical centers, standardization and excellence of modern medical schools and training, the dissemination of reports via journals, and instant communication devices. These trends are particularly applicable to general practitioners, as well summarized in the Stanford Law Review:

"The American Medical Association studied the extent of postgraduate medical education in the United States. The results of the study were published in a series of articles in the Journal of the American Medical Association beginning February 26, 1955. Results showed physicians spend on the average 83 days of such study each year. In 1961, 1,105 courses in continuing medical education were offered to physicians; 52% were designed for general practitioners; 35% for specialists, and 13% for both. Parke, Davis Co., Patterns of Disease 2 (March, 1962). Of 20,432 physicians enrolled in 695 courses in 1956-57, almost one-third traveled 50 to 200 miles to the course center. Ibid. Moreover, since its founding in 1947, the American Academy of General Practice has required postgraduate medical education for continuing membership. American Academy of General Practice, 22 Questions and Answers (1961). The present membership of the Academy is approximately 27,000. Ibid. The present requirement is 150 hours of postgraduate medical education every three years. See American Academy of General Practice, Academy Postgraduate Study Requirements Continuing Education (Nov, 1961). Apparently no American Specialty Board or specialty society requires postcertification medical education.

"G P, the monthly publication of the Academy, had subscriptions of 13,058 in 1950 and 69,838 in 1961. See Questionnaire From the American Academy of General Practice to the Stanford Law Review. The weekly publication of the American Medical Association, AMAJ had subscriptions of 134,572 in 1950 and 185,654 in 1961. See Questionnaire From the American Medical Association to the Stanford Law Review.

"An example of a major change in the communication of medical knowledge is Mediphone, a service center which dispenses emergency drug information by phone to any of its over 200,000 physician subscribers." Recent Development, Medical Specialties and the Locality Rule, 14 Stanford L Rev 884, fns 12, 21 (1962).

Currently, an increasing number of general practitioners, or family physicians, take an examination every six years to become or remain certified as diplomates of the American Board of Family Practice. These physicians are also required to take 50 hours of continuing education each year in order to keep up with new developments. Approximately 60 percent of the examination questions concern medical knowledge or techniques not well known six to ten years ago. This is the first specialty to recognize mandatory recertification of its members and, pertinent to the issue at bar, the requirements do not vary with the physician's community. Thus, it is apparent the general practitioner has been in advance of our courts in recognizing the professional obligation to keep current. Detroit Free Press, GPs Keeping Up? Test Requires Them To (November 1, 1976), p 1-D.

II — NEW APPROACHES TO THE RULE

Other courts have recognized these changes by acknowledging the artificiality of the concept of the locality rule defining a general practitioner's universe.

One approach has been to ignore geographical boundaries and to look instead to the medical locality as the relevant area. Thus, courts adopting this rule have tended to consider the proximity and accessibility of medical factors such as schools, hospitals and research, teaching and laboratory facilities in the localities compared. Tvedt v Haugen, 70 N.D. 338, 349; 294 N.W. 183, 188 (1940) (defendant physician's lack of an adequate X-ray machine was not an excuse where he was familiar with and had access to more expert advice and facilities in nearby towns); Flock v J C Palumbo Fruit Co, 63 Idaho 220, 236-238; 118 P.2d 707, 714-715 (1941); Hodgson v Bigelow, 335 Pa. 497, 518; 7 A.2d 338, 348 (1939) (X-ray machines must be available if defendant is to be liable for a failure to use one).

This, however, only partially rectifies the problem, and, after reviewing the same sort of evidence of improved communication and technology, still other courts have determined that the appropriate approach is not to re-interpret the locality rule, but to eschew strict adherence to it. Thus, declaring that "[t]he time has come when the medical profession should not longer be Balkanized by the application of varying geographic standards in malpractice cases", the Supreme Judicial Court of Massachusetts overruled Small v Howard, supra, and established a new rule in Brune v Belinkoff, 354 Mass. 102, 108-109; 235 N.E.2d 793, 798 (1968) (emphasis by the Court).

"The proper standard is whether the physician, if a general practitioner, has exercised the degree of care and skill of the average qualified practitioner, taking into account the advances in the profession. In applying this standard it is permissible to consider the medical resources available to the physician as one circumstance in determining the skill and care required. Under this standard some allowance is thus made for the type of community in which the physician carries on his practice."

A similar approach was adopted in the state of Washington, where the Supreme Court found the locality rule

"has no present-day vitality except that it may be considered as one of the elements to determine the degree of care and skill which is to be expected of the average practitioner of the class to which he belongs. The degree of care which must be observed is, of course, that of an average, competent practitioner acting in the same or similar circumstances. * * * [L]ocal practice within geographic proximity is one, but not the only factor to be considered. * * *

"[The] standard of care is that established in an area coextensive with the medical and professional means available in those centers that are readily accessible for appropriate treatment of the patient." Pederson v Dumouchel, 72 Wn.2d 73, 79; 431 P.2d 973, 978 (1967) (emphasis by the Court).

Accord, Shier v Freedman, 58 Wis.2d 269, 283-284; 206 N.W.2d 166, 171 (1973).

With minor changes, the Washington method has been adopted by Kentucky. That Court substituted the term "reasonably competent" for the Washington Court's "average", thus requiring a jury instruction that "the defendant was under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances". Blair v Eblen, 461 S.W.2d 370, 373 (Ky, 1970).

Arguing that "we will not perpetuate a rule designed to protect country doctors in 1902, but we will leave determination of the standard to the medical profession and not the lay courts", the Kentucky Court decreed that "evidence may include the elements of locality, availability of facilities, specialization or general practice, proximity of specialists and special facilities as well as other relevant considerations". 461 S.W.2d 373.

III — THE RESTATEMENT COMMENT

Perhaps the most significant bastion of the locality rule remains the Restatement. However, even there, the concept is not written in stone. It did not appear in the first Restatement Torts, § 299, comment d, where the standard was: "In those professions which can be practiced only by persons who have been trained thereto, one * * * is required to have the skill normal to the average member of the profession". This did not limit the required skill to that in the same or like localities. That requisite was added by the Second Restatement Torts, § 299A:

"Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities."

In comment g, the Reporter indicates geographical location, size, and the character of the community in general are factors to consider.

As the Blair opinion noted, although still retained by the Restatement, the "`community standard' rule in these cases is being steadily rejected". 461 S.W.2d 373.

Dean Prosser, the Restatement Reporter, has himself observed that this locality rule is falling into disfavor, and that such rejection is justified.

"Formerly it was generally held that allowance must be made for the type of community in which the physician carries on his practice, and for the fact, for example, that a country doctor could not be expected to have the equipment, facilities, libraries, contacts, opportunities for learning, or experience afforded by large cities. Since the standard of the `same locality' was obviously too narrow, this was commonly stated as that of `similar localities,' thus including other towns of the same general type. Improved facilities of communication, available medical literature, consultation and the like, led gradually to the abandonment of any fixed rule, and to treating the community as merely one factor to be taken into account in applying the general professional standard. In a few jurisdictions the `locality rule' has been entirely discarded, and the general standard applied in all cases." Prosser, Handbook of Torts (4th ed), ch 5, p 164.

The Restatement has never been the basis of the Michigan rule. Instead, we have, first, based our formulation of the appropriate standard of care for physicians on the same technological and communication problems which troubled other courts. Then, we have emphasized that geography itself should not alone be determinative.

IV — MICHIGAN AND THE LOCALITY RULE

Michigan has followed the locality rule but recognizes at least two modifications. First, the physician must conduct his or her practice in conformity with the state of the art. And second, the general practitioner is expected to know within reason when a medical problem requires consultation with a specialist.

The locality rule was clarified in our state initially in Pelky v Palmer, 109 Mich. 561, 564; 67 N.W. 561 (1896), where we held it was incorrect to limit the standard to a particular locality or neighborhood. Thus, the basic Michigan standard is the practice in the same or similar communities.

Pelky did several other things. First, it expressed a rationale for the rule, "that a surgeon's skill depends somewhat upon his experience and opportunity for witnessing operations, and it is to be expected that the degrees of surgical skill met with in different localities will be affected by these things." 109 Mich. 563. However, Pelky also made it clear that the locality rule could not be construed to excuse incompetence, using this as one reason to reject the "same locality" requirement. "[A] man with no skill, or inconsiderable skill, could not shelter himself behind the claim that he was the only practitioner in his neighborhood, and therefore that he was possessed of the ordinary skill required, although shown to possess less than the ordinary skill to be met with in such localities." 109 Mich. 563. The opinion also suggested that geography alone would not determine the appropriate standard, for we said, "the character of the locality has an important bearing upon the degree [of skill] requisite." 109 Mich. 563 (emphasis added).

This flexible approach by our Court is also seen by our definition of locality. Rejecting a strict geographical concept, in determining the competency of experts to testify we have tended to find localities similar if we find, for example, similar medical facilities in the localities compared. Sampson v Veenboer, 252 Mich. 660, 667; 234 N.W. 170 (1931). Our rationale for so doing is similar to the one expressed in Pelky, in that we made it clear that the locality should never be construed to make it impossible for plaintiffs to bring a cause of action against a truly negligent physician.

"At times it may become necessary to secure the expert testimony of one who resides some distance from the home of a defendant accused of malpractice, for it may be difficult to obtain a witness to testify against one who bears the very high professional reputation of defendant. If it would always be necessary to secure an expert from the vicinity of the home of a defendant who might be the only practitioner there, it would be impossible to secure such testimony at all. What credence should be given to the expert's statements is another matter. That was the province of the jury." 252 Mich. 667.

So much for the locality part of the rule. As for the state of the art modification, we have emphasized that the physician's skill must be exercised in the light of present-day scientific knowledge. Wood v Vroman, 215 Mich. 449, 465-466; 184 N.W. 520 (1921). Although Wood dealt with specialists, in other cases we have said that specialists are not the only ones required to keep up. See Hitchcock v Burgett, 38 Mich. 501, 512 (1878) ("[T]he advanced state of the profession[s] [physicians and surgeons] should be considered"); Miller v Toles, 183 Mich. 252, 257; 150 N.W. 118 (1914) ("[D]ue consideration [must be given] to the state of the art at the time").

As for consultation with specialists, in Morgan v Engles, 372 Mich. 514, 516; 127 N.W.2d 382 (1964), we recognized that a general practitioner is not serving the public with due care, even if the medical problem is beyond the capabilities of a practitioner in the same or similar localities, if the practitioner reasonably should have understood that diagnosis or treatment was beyond his or her skills and that the patient should have been referred to a specialist.

"The rule is summed up in the annotation entitled `Duty of physician or surgeon to advise patient of the possibility or probability of better results from treatment by specialist or by a mode of treatment which he is not qualified to give.' 132 ALR 392. It reads as follows:

"`It may be stated as a general rule that, as a part of the requirements which the law exacts of general practitioners of medicine and surgery, or other schools of healing, if, in the exercise of the care and skill demanded by those requirements, such a practitioner discovers, or should know or discover, that the patient's ailment is beyond his knowledge or technical skill, or ability or capacity to treat with a likelihood of reasonable success, he is under a duty to disclose the situation to his patient, or advise him of the necessity of other or different treatment.' Citing Janssen v Mulder, 232 Mich. 183 (25 NCCA 248) [ 205 N.W. 159 (1925)], among other cases."

Thus, it is apparent that while this Court has recognized the locality rule, it has insisted that the state of the art be kept in mind and that inadequate service in a locality is not excusable if the practitioner should have reasonably referred the case to a specialist.

V — A BETTER RULE FOR TODAY

We are persuaded that the factors we have reviewed — rapid methods of transportation, easy means of communication, the efforts of the medical profession itself to disseminate the latest advances, as well as the obligation of any professional to keep abreast of such progress — have rendered obsolete the reasons for maintaining greater emphasis on geography rather than on the state of the art.

Further, there have been sufficient problems with the old emphasis to encourage us to look for suitable alternatives. Stressing geography has at least the potential effect of insulating pockets of substandard medical practice and of severely restricting the pool of available expert witnesses, essential participants in most malpractice cases. Furthermore, "this Balkanization of the profession [is] inconsistent with the recognition of an increasingly universal medical science". King, In Search of a Standard of Care for the Medical Profession: The "Accepted Practice" Formula, 28 Vand L Rev 1213, 1239 (1975).

It has also been cogently argued:

"Rural and small-town doctors should not enjoy advantages not given by the law to any other class of rural and small-town tort defendants. When patients considering operations approach doctors in Raymond, the doctors do not admit that they can be a little more careless and act with less responsibility than can doctors in Olympia, who can be a little more negligent than doctors in Tacoma, who can be a little more negligent than doctors in Seattle, who can be considerably more negligent than the doctors in New York City. Certainly, if doctors should freely indicate such discrepancies in medical practice, it would not be surprising that there would be a decrease in the number of operations in Tacoma and Olympia — and a greater decrease still in the Raymond area." Douglas v Bussabarger, 73 Wn.2d 476, 490; 438 P.2d 829, 838 (1968).

Like the Iowa court which took a more understanding approach almost 100 years ago, "we recognize the fact that this standard [of care] must be a practical and attainable one, and not one of mere theory or fancied perfection, the enforcement of which would cause much litigation, and necessarily drive from the profession a large portion of those from whose practice the largest measure of practical good is attained". Smothers v Hanks, 34 Iowa 286, 290 (1872).

This brings us to the formulation of a desirable rule. We think that the approaches of the Washington, Massachusetts and Kentucky Supreme Courts suggest the most viable alternatives, insofar as they permit cognizance of the purposes of the locality rule, as well as a recognition of the tradition that, by and large, physicians, because of their special knowledge, set their own standard of care. Further, while ensuring adherence to social responsibility, we do not wish to make it impossible to attract physicians to what may be less desirable centers of practice, those rural areas to which the old locality rule was properly directed. Pederson v Dumouchel, 72 Wn.2d 73; 431 P.2d 973 (1967); Brune v Belinkoff, 354 Mass. 102, 108-109; 235 N.E.2d 793, 798 (1968); Blair v Eblen, 461 S.W.2d 370, 373 (Ky, 1970).

We find, therefore, that the appropriate test is that a general practitioner is under a duty to use that degree of care and skill which is expected of a reasonably competent practioner of the same class, acting under the same or similar circumstances.

Factors to consider in construing the circumstances may include:

(A) State of the Art

Certainly, a different standard may be required for dealing with an esoteric condition known only to a few experts or requiring sophisticated, costly and rare equipment to diagnose and treat, from that for treating a simple fracture for instance. It may well be unrealistic to require a general practitioner to recognize a rare condition hitherto seen by only a small number of experts in the whole world, but it may be equally unrealistic to permit a local physician to continue prescribing medication or procedures which have been long since contraindicated for a particular condition.

Consideration of this factor permits both parties to present evidence indicating whether defendant physician should have been expected to diagnose and/or treat the patient differently, based primarily on the general state of knowledge of the subject condition within the medical community of general practitioners as a whole.

(B) Consultation with Specialist

While it is possibly asking too much of the general practitioner in a less medically favored locality to be able to render the same quality of services that a specialist or a general practitioner in a more medically favored area would be capable of, it may nonetheless be reasonable to expect him or her to recognize when a medical problem requires the aid of a specialist or a general practitioner with more experience or training.

Parties in a malpractice case may therefore present evidence indicating whether or not the defendant physician should reasonably have recognized that the medical problem presented required the diagnosis or treatment of a specialist or at least a physician with more training or skill than the defendant. Unreasonable failure to do so could be found to constitute negligence.

(C) Local Practice

Defendant is permitted to come forward with proof of local factors which would warrant deviation from a general or national norm. 43 Miss L J 592, fn 30; Note, Torts — Medical Malpractice — Rejection of "Locality" Rule, 46 NC L Rev 680, 686 (1968). This may include such factors as lack of facilities and specialists, nonaccessibility and distance of facilities and specialists, and the unique character of the medical condition in relation to the experience of the community. It is likely, for example, that locality will tend to have little relevance if the question is whether a physician should have known something, but may be significant if the alleged malpractice involves failure to give unusual, sophisticated treatment available in only a few medical centers in the world.

Consistent with this, the locality, however, should not be the geographical boundaries of the particular community, but should be defined as "an area coextensive with the medical and professional means available in those centers that are readily accessible for appropriate treatment of the patient". Pederson v Dumouchel, supra, 72 Wn.2d 79; 431 P.2d 978. For purposes of determining the competence of experts to testify, if factors warranting such deviation from the general norm are demonstrated, then the expert should be familiar with practice in similar communities so defined.

For purposes of determining the ultimate question of the appropriate standard of care, the jury should be instructed that the standard of care in these medically similar localities is but " one circumstance in determining the skill and care required". Brune v Belinkoff, supra, 354 Mass. 109; 235 N.E.2d 793, 798.

In this way, an unreasonable standard is not imposed upon the most isolated physician, and unique characteristics of the community will be taken into account, while, at the same time, answering the primary well-founded objections to the old locality rule. The pool of possible witnesses will not be unrealistically limited, and those physicians giving substandard care will not be permitted to shield themselves behind geographical boundaries.

This rule, while perhaps shifting the emphasis, is in the spirit of, and not inconsistent with, the Michigan precedents hereinabove discussed.

VI — APPLICATION TO THE PRESENT CASE

Although this rule concerning the standard of care is intended to be prospective only, and thus not applicable to the case at bar, we include examples as to the appropriate means of applying the test in order to provide guidance to the profession.

The physicians involved in the case at bar are themselves examples of the high level of education and cross-fertilization now typical of the profession. Dr. Barrios, a native of Peru, attended premedical and medical school in Lima, Peru, where he also was a resident in pulmonary diseases. He came to the United States to participate in a rotating internship in Sioux Falls, South Dakota. Subsequently, except for a brief period during which he returned to Peru, he was a resident physician at Mayberry Sanitarium in Northville, Michigan (including one period when he was assigned to the Children's Unit), was a resident surgeon at Alexander Blain Hospital in Detroit, and was the physician in charge of the Student Health Service at Michigan Technological University in Houghton before opening his own office in Hancock in 1965. He is a member of the staff of St. Joseph's Hospital in Hancock, a member of the local medical society, and is licensed to practice in Michigan.

Dr. Barrios is associated in the same office with Dr. Pedro Ruiz De Castilla, also a Peruvian native who attended school in Lima, Peru. Dr. De Castilla was an intern in St. Mary's Hospital, Knoxville, Tennessee, and held residencies in pathology in Baptist Hospital, Nashville, Tennessee, in general surgery at Harper Hospital, Detroit, and in pediatric surgery at Children's Hospital, Detroit, before joining Dr. Barrios. In Dr. De Castilla's application for appointment to the medical staff of St. Joseph's Hospital, he requested privileges in general practice and general surgery, and noted a specialty in pediatric surgery. Dr. Barrios and Dr. De Castilla often consulted together.

Even the nurses at St. Joseph's Hospital are part of this ecumenism, as they are trained in the use of the Isolette at Children's Hospital in Detroit.

The entire active Medical Staff of St. Joseph's Hospital, apparently including those who do not hail from the Houghton-Hancock neighborhood, participate in evaluating the clinical practice in the hospital. Such is required for accredited hospitals by the Commissioners of the Joint Commission on Accreditation of Hospitals. Members of the General Practice Department should have privileges in the clinical services of the other departments of the hospital. Additionally, medical staff meetings of the hospital are held regularly.

While none of these factors is alone dispositive, they do indicate that the bucolic picture of the lone general practitioner, isolated in a small village, remote from contact with other general practitioners and specialists, and shut off from the progress of modern medicine, is neither accurate nor appropriate. In the case at bar, when Dr. Barrios ultimately recognized he had a problem with the Siirila infant, he had ready access to a specialist, who himself had similar access to a specialist. This was in addition to the specialist in his own office.

(A) State of the Art

We note that there is evidence offered indicating familiarity of the medical community with oxygen dosage and RLF. Furthermore there was evidence that knowledge of RLF and the proper oxygen treatment to avoid it was common and widespread in the medical profession. Defendant might offer evidence that such information was in fact not generally known by other general practitioners. While defendant might testify that he did not know as evidence of the state of the art, that is not conclusive, inasmuch as he might well be required to have known because of the general state of the art. Defendant cannot alone define the state of the art by his knowledge, or lack of it, when that index will eventually be used to determine whether he was in fact negligent.

(B) Consultation with Specialist

Testimony that James Scott Siirila was born three-and-one-half months prematurely and at 2 pounds, 1 ounce, was the smallest baby ever born in the area would certainly be in order to raise the question whether a general practitioner in the Hancock area should not have immediately consulted with a specialist. Likewise it would appear that testimony that the smaller the baby the more likelihood of RLF would be appropriate.

Defendant would, of course, be entitled to produce testimony that in his area such circumstances would not reasonably suggest consultation with a specialist, and the jury would have to decide the question. Defendant could also, of course, recognize that the degree of prematurity and the smallness of the baby required special handling but that such handling was within his capabilities. This would naturally subject his actions to being judged by a higher standard of care.

(C) Local Practice

Defendant presented extensive evidence concerning the difficulty of transporting an infant to Marquette, which, insofar as it depicts the difficulty perhaps of obtaining treatment, indicates particular factors which the jury might accept as making the Houghton-Hancock area unique and thus precluding application of a broader standard.

Evidence that because of factors unique to Houghton-Hancock physicians in that area did not consider the possibility of RLF when prescribing oxygen therapy is also pertinent.

Plaintiff, of course, might present evidence to rebut such contentions.

The above are not the only factors which may be presented as to standard of care, but they suggest the appropriate means by which it may be established.

VII — CONCLUSION

The rule decreeing that the standard of care of general practitioners is determined by reference to the standard in the same or similar communities has long been accepted by bench and bar. Therefore, rather than apply the new rule of law to the case at bar, we would apply it to all cases tried after the date this opinion issues. "A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward." Great Northern R Co v Sunburst Oil Refining Co, 287 U.S. 358, 364; 53 S Ct 145; 77 L Ed 360 (1932).

We would hold that the test in Michigan henceforth shall be that a general practitioner is under duty to use that degree of care and skill which is expected of a reasonably competent practitioner of the same class, acting under the same or similar circumstances, having in mind (a) the state of the art for the particular medical situation, (b) whether a specialist should reasonably have been consulted and (c) such local factors as might be pertinent.

We would therefore affirm the trial court.

LEVIN, J., concurred with WILLIAMS, J.