Since Mr. Samuels' medical experts, Dr. Winkler and Dr. Wepsic, were not ordinarily employed as neurosurgeons in Shreveport, the district court properly excluded their testimony under Meyer. The locality rule stated in Meyer was reaffirmed in Uter v. Bone and Joint Clinic, 249 La. 851, 192 So.2d 100 (1966). It has been applied by intermediate appellate courts in Louisiana.
Davis v. Duplantis, 448 F.2d 918, 919-920 (5th Cir. 1971). See Uter v. Bone and Joint Clinic, 249 La. 851, 192 So.2d 100 (1966); Meyer v. St. Paul-Mercury Indem. Co., 225 La. 618, 73 So.2d 781 (1953). The plaintiff bears the dual burden of first adducing the local medical standard of care and then proving that the defendant negligently deviated from that standard in a manner which proximately caused harm to the plaintiff.
To recover in a malpractice case, plaintiff has the dual burden of proving first, the recognized standard of care generally practiced by other physicians in the community in similar situations, and second, that the defendant negligently failed to follow that standard. Davis v. Virginian Railway Co., 361 U.S. 354, 80 S.Ct. 387, 4 L.Ed.2d 366 (1960); Meyer v. St. Paul Mercury Indemnity Co., supra; Uter v. Bone Joint Clinic, 249 La. 851, 192 So.2d 100 (1966). Relying on this rule, the trial court directed a verdict for Dr. Duplantis on the ground that plaintiff's proof failed to provide the first ingredient of his case, i.e., the standard of care existing and to be followed by a general practitioner of medicine in the community of Covington, Louisiana. Contending that the case should have been sent to the jury, plaintiff says three things: first, the community standard was established through the testimony of Dr. Duplantis himself while under cross-examination; second, notwithstanding any community standard, the doctor failed to take known precautions for his patient's welfare; and third, Dr. Duplantis failed to inform his patient of certain x-ray results and, therefore, is liable for simple negligence.
The locality rule was not an issue in Meyer; however, the rule was expressed as part of the standard of care to which physicians must be held. The Supreme Court of Louisiana fairly recently reaffirmed the locality rule in Uter v. Bone and Joint Clinic, 249 La. 851, 192 So.2d 100 (1966). Likewise, the Courts of Appeal of Louisiana (intermediate appellate courts) continue to employ the locality rule as the proper standard of care in medical malpractice cases.
Although the opinion cites Louisiana appellate decisions, along with Corpus Juris Secundum, the cases do not support the rule as announced. 249 La. 851, 192 So.2d 100 (1966). Although the courts of appeal often cite Meyer as establishing the standard of care owed by physicians, its language has not been followed consistently in determining the competency of an expert witness to testify on the issue of negligence.
We disapprove of an instruction based on Meyer v. St. Paul-Mercury Indemnity Company, 225 La. 618, 73 So.2d 781 (1954) and its progeny (which pre date the Medical Malpractice Act), which stated the locality rule and declared the following is applicable to the standard of care: "[I]t is 'incumbent on the physician, surgeon or dentist who becomes defendant in a malpractice case to show that he is possessed of the required skill and competence indicated and that in applying that skill to the given case he used reasonable care and diligence along with his best judgment.'" Foster v. St. Paul Fire and Marine Insurance Company, 212 So.2d 729, 732 (La.App. 4th Cir. 1968), quoting Uter v. Bone and Joint Clinic, 249 La. 851, 192 So.2d 100, 102 (1966). However, we must look at the jury instruction as a whole.
As a physician, he is not required to exercise the highest degree of skill and care possible, but to use reasonable care and diligence along with his best judgment. Uter v. Bone and Joint Clinic, 249 La. 851, 192 So.2d 100 (1966); Meyer v. St. Paul-Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1953); Harwell v. Pittman, 428 So.2d 1049 (La.App. 1st Cir. 1983), writ denied, 434 So.2d 1092 (La. 1983); Borne v. Brumfield, 363 So.2d 79 (La.App. 4th Cir. 1978); Lauro v. Travelers Insurance Company, 261 So.2d 261 (La.App. 4th Cir. 1972), writ refused, 262 La. 188, 262 So.2d 787 (1972). In the case sub judice, the policy of BRGH was that a person should not be transferred to another hospital unless he was stable enough to be transferred and that doctors on call were required to answer calls at the BRGH emergency room.
As a physician, he is not required to exercise the highest degree of skill and care possible, but to use reasonable care and diligence along with his best judgment. Uter v. Bone and Joint Clinic, 249 La. 851, 192 So.2d 100 (La. 1966); Meyer v. St. Paul-Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (La. 1953); Borne v. Brumfield, 363 So.2d 79 (La.App. 4th Cir. 1978); Lauro v. Travelers Insurance Company, 261 So.2d 261 (La.App. 4th Cir. 1972), writ refused, 262 La. 188, 262 So.2d 787 (1972). Whether or not to operate is a matter of clinical judgment for the treating surgeon after weighing all the facts before him.
"The standard of care by which a physician is judged in malpractice cases is that he `exercise the degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill to the case'. Meyer v. St. Paul-Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1954); Uter v. Bone and Joint Clinic, 249 La. 851, 192 So.2d 100 (1966). "The best evidence of the local community standards is found through testimony of other experts in the same field.
The general rule is that it is the duty of a physician to exercise a degree of skill ordinarily employed under similar circumstances by the members of his profession in good standing in the same community or locality and to use reasonable care and diligence along with his best judgment in the application of his skill to the case. Meyer v. St. Paul Mercury Indemnity Company, 225 La. 618, 73 So.2d 781 (La. 1954); Uter v. Bone Joint Clinic, 249 La. 851, 192 So.2d 100 (La. 1966). The physician is ordinarily not a guarantor of a perfect result each time, and it is recognized that despite the best skill and judgment of competent practitioners, unfortunate results may occur.