Arkansas medical malpractice plaintiffs have the burden of proving the local standard of care through testimony of an expert “engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality[.]” This “locality rule” is codified in the Arkansas Medical Malpractice Act. See Ark. Code Ann. § 16-114-206(a)(1).
In Brazeal v. Cooper, plaintiff alleged complications from a total knee replacement performed in Benton County, Arkansas. The defense expert, a practicing orthopedic surgeon in neighboring Crawford County, Arkansas, testified he was familiar with the standard of care in Benton County and that there were no appreciable differences in the practice of orthopedic surgery in the two counties. Plaintiff moved to strike a defense expert, arguing the locality rule should apply equally to all experts and that the defense testimony was irrelevant under Rule 402 of the Arkansas Rules of Evidence because it failed to meet the rule.
The Arkansas Court of Appeals affirmed admission of the testimony. Whether an expert satisfies the locality rule is based not on geographic location, population, or area, “but on the similarity of the local medical facilities, practices, and advantages.” An expert need not have practiced in a particular locality if the expert demonstrates familiarity with the local standard of practice. Here, the defense expert expressly testified that the standard of practice in Benton County was the same as the standard of practice in Crawford County. This was sufficient to satisfy the locality rule.
Significantly, because plaintiff failed to object contemporaneously to the relevance of challenged expert, the Brazeal court held plaintiff failed to preserve for review the question of whether the locality rule applies equally to defense experts. While the issue remains undecided, the Brazeal decision highlights both the relatively low bar set by the locality rule and the Arkansas appellate courts’ strict enforcement of the requirement of a contemporaneous objection to challenged testimony.
The complete decision in Brazeal v. Cooper, 2016 Ark. App. 442 (Sept. 28, 2016) can be found here.