The doctors were qualified to testify whether Grieco followed the standard of care and skill required of physicians in examining, diagnosing and treating a patient suffering from "blunt trauma" to the abdomen to determine whether an intra-abdominal injury was present. See Goffe v. Pharmaseal Laboratories, Inc., No. 2480 (Ct.App.), decided December 7, 1976 (Sutin, J., concurring in part and dissenting in part), cert. granted January 7, 1977; Gandara v. Wilson, 85 N.M. 161, 509 P.2d 1356 (Ct.App. 1973). Grieco suggests consideration of Murphy v. Dyer, 409 F.2d 747 (10th Cir. 1969).
Furthermore, the medical expert or experts must be qualified to express an opinion concerning the recognized standard of medical practice in the community and an opinion that the defendant departed from that standard or neglected to do something required by the standards. Gandara v. Wilson, 85 N.M. 161, 509 P.2d 1356 (Ct.App. 1973). At the outset of our discussion, it is well to remind ourselves that a medical malpractice suit is a negligence action.
Despite these criticisms, the locality rule is still followed in several jurisdictions. See, e. g., Levett v. Etkind, 158 Conn. 567, 573, 265 A.2d 70 (1969); Gandora v. Wilson, 85 N.M. 161, 163, 509 P.2d 1356, 1358 (1973). The majority of jurisdictions, however, have abandoned the locality rule.
Moreover, only a distinct minority of states still adhere to the strict locality rule. Dunham v. Elder, 18 Md. App. 360, 306 A.2d 568 (1973); Gandara v. Wilson, 85 N.M. 161, 509 P.2d 1356 (1973); Levett v. Etkund [Etkind], 158 Conn. 567, 265 A.2d 70 (1969); Lockart v. Maclean, 77 Nev. 210, 361 P.2d 670 (1961). A plurality of states now apply the "similar locality" rule, see, e. g., Mecham v. McLeay, 193 Neb. 457, 227 N.W.2d 829 (1975); Karrigan v. Nazareth Convent Academy, Inc., 212 Kan. 44, 510 P.2d 190 (1973); Runyon v. Reid, 510 P.2d 943 (Okla.
The adoption of this rule by the New Mexico Supreme Court indicated a change in the law. We hereby modify Cervantes v. Forbis, supra, and Gandara v. Wilson, 85 N.M. 161, 509 P.2d 1356 (Ct.App. 1973) and other cases insofar as they purport to mandate a "strict-locality" rule and we declare that the first paragraph of N.M.U.J.I.Civ. 8.1 is the correct statement of New Mexico law. Evidence of the standard of knowledge, skill and care owed by a physician to his patient can be provided by expert testimony of the knowledge, skill and care ordinarily used by reasonably well-qualified doctors of the same field of medicine practicing under similar circumstances, and this includes testimony from doctors from the same or other localities. Los Alamos Medical Center v. Coe, 58 N.M. 686, 275 P.2d 175 (1954).
06 (1973 1973 Supp.); Prosser, Torts § 32, 161 (4th ed. 1971); Annot., 21 A.L.R.3d 953 (1968 1973 Supp.); Note, An Evaluation of Changes in Medical Standard of Care, 23 Vand.L.Rev. 729 (1970); Waltz, The Rise and Gradual Fall of the Locality Rule in Medical Malpractice Litigation, 18 DePaul L.Rev. 408 (1969); Perdue, The Law of Texas Medical Malpractice: Standard of Care, 11 Houston L.Rev. 22 (1973); Kroll, The Etiology, Pulse and Prognosis of Medical Malpractice, 8 Suffolk L.Rev. 598 (1974); King Coe, The Wisdom of the Strict Locality Rule, 3 Baltimore L. Rev. 221 (1974).Gandara v. Wilson, 85 N.M. 161, 509 P.2d 1356 (1973). Basically the states have taken one of three positions on this issue.
A distinct minority of states, however, cling to the strict locality rule. Horton v. Vickers, 142 Conn. 105, 111 A.2d 675, 679 (1955) ("in the same general neighborhood"), accord,Levett v. Etkind, 158 Conn. 567, 265 A.2d 70, 41 A.L.R.3d 1343 (1969); Lockart v. Maclean, 77 Nev. 210, 361 P.2d 670 (1961); Gandara v. Wilson, 85 N.M. 161, 509 P.2d 1356, 1358 (1973) ("recognized standards of medical practice in the community"); see Bertrand v. Aetna Casualty Surety Company, 306 So.2d 343, 347 (La. App. 1975) ("in the same community or locality"). Nevertheless, recognizing the significant developments which have occurred in the training and practice of medicine, and the population shifts which have marked the increased urbanization of our society, a majority of American courts have now abandoned the strict locality rule as being too narrow.
Nevertheless, to give scientific or specialized opinion testimony, an expert witness must be qualified to do so by knowledge, skill, training or education. N.M.R.Evid. 702, N.M.S.A. 1978; see, Gandara v. Wilson, 85 N.M. 161, 509 P.2d 1356 (Ct.App. 1973); Dahl v. Turner, 80 N.M. 564, 458 P.2d 816, 39 A.L.R.3d 207 (Ct.App.), cert. denied, 80 N.M. 608, 458 P.2d 860 (1969). A medical expert must also be able to testify as to how and why he arrives at an opinion that a defendant physician's conduct has been substandard.
"[O]ne person's preference does not establish a standard of care." Hutchins v. Blood Services of Montana, 506 P.2d 449 (Mont. 1973); Gandara v. Wilson, 85 N.M. 161, 509 P.2d 1356 (Ct.App. 1973). "* * * However, in order to prove a case of actionable negligence, plaintiff must do more than have an expert witness testify that he would like to have the test used.
Its orders are final. See, Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973); Gandara v. Wilson, 85 N.M. 161, 509 P.2d 1356 (Ct.App. 1973); Salazar v. State, 82 N.M. 630, 485 P.2d 741 (Ct.App. 1971). (2) Entrapment was not an issue.