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SUPREME COURT SHOULD NOT HAVE RELIED ON THE “LOCALITY RULE” TO DISMISS THE OPINION OF PLAINTIFF’S EXPERT BECAUSE THE EXPERT PRACTICED MEDICINE IN ANOTHER STATE: WHEN AN EXPERT TESTIFIES ABOUT STANDARDS APPLICABLE THROUGHOUT THE UNITED STATES, THE LOCALITY RULE SHOULD NOT BE INVOKED (THIRD DEPT).

The Third Department, reversing Supreme Court in this medical malpractice action, determined plaintiffs’ expert affidavit was not conclusory or speculative and raised triable questions of fact. The Third Department noted that Supreme Court should not have dismissed plaintiffs’ expert’s (Grant’s) opinion on the ground Grant practiced medicine in a different state. Although the “locality rule” has not been set aside, it does not affect the validity of an opinion based on standards applicable throughout the United States:

… [W]e briefly address Supreme Court’s reliance on the fact that Grant practiced medicine in another state to ostensibly dismiss his opinions. Over 125 years ago in Pike v Honsinger (155 NY 201 [1898]), the Court of Appeals promulgated what has become known as the locality rule … . Under this rule, “the prevailing standard of care governing the conduct of medical professionals demands that a doctor exercise that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where the doctor practices” … . While this rule has not been set aside, this Court has indicated that “the development of vastly superior medical schools and postgraduate training, modern communications, the proliferation of medical journals, along with frequent seminars and conferences, have eroded the justification for th[is] rule” … . With the rise of the Internet and the attendant ease with which information is disseminated, this is even more true today. “Thus, where, as here, a medical expert proposes to testify about minimum standards applicable throughout the United States, the locality rule should not be invoked” … . Kosinski v Wladis, 2025 NY Slip Op 06772, Third Dept 12-4-25

Practice Point: In a med mal case, where an expert testifies about standards applicable throughout the United States, the “locality rule” requiring the application of local standards should no longer be invoked. Here plaintiffs’ expert’s opinion was erroneously dismissed because the expert practiced medicine in a different state.

 

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