Legal Group Issues ‘Restatement’ of Medical Malpractice Law

The American Law Institute (ALI) — an organization of judges, professors, and practicing attorneys — published a new standard for medical malpractice that takes into account evidence-based medicine.

“The new standard of care … represents a shift away from strict reliance on medical custom and invites courts to incorporate evidence-based medicine in malpractice law,” wrote Christopher Robertson, JD, PhD, of the Boston University School of Law, and co-authors in JAMA.

“Although states may adopt the recommendations … at different times and to varying degrees, the restatement offers health professionals and the organizations in which they practice an opportunity to reconsider how medical negligence will be assessed, and to focus more directly on promoting patient safety and improving care delivery,” they noted.

While risk varies by specialty, on average one-third of physicians can expect to be sued at least once during their career, the authors said. Malpractice insurance largely shields physicians from steep financial consequences resulting from a lawsuit, but “malpractice lawsuits carry additional consequences for physicians, including reporting requirements to boards of medicine, which can create public records, and potential limits on hospital privileges,” Robertson and colleagues wrote.

“Surveys show that these consequences are of concern to physicians, and fear of liability can drive unproductive changes in practice patterns known as ‘defensive medicine.'”

Restatement of the Standard

The ALI approved this restatement of medical malpractice law in May 2024. “Restatements from the ALI attempt to provide descriptive coherence across the 50 different state court systems and to help states clarify and improve their laws,” the authors wrote, noting that almost all malpractice law is state, not federal, law. “State supreme courts often refer directly to restatements in adopting (or, sometimes, rejecting) the approach from the ALI to a particular legal domain.”

The restatement was prompted by a need for clarity, Robertson noted. “It’s one of those things where professional liability had always been kind of off to the side and thought about as though it’s a special domain that the normal rules don’t exactly apply to,” he said in a phone interview. “That became kind of unsustainable at a certain point, and there was a recognition that some clarity was important and it couldn’t just be ad hoc.”

The ALI’s restatement focused on several areas:

The Legal Standard of Care. “Since the mid-1800s, U.S. courts have understood negligence to mean the failure to behave with ‘ordinary care’ or ‘reasonable care'”; however, a specialized approach is needed in malpractice cases, when experts like physicians are being held accountable by non-expert judges and juries, the authors wrote. As a result, liability findings typically turned on whether the physician had been following the customs of the profession.

But today, “modern courts encourage jurors to consider other factors, including the risks and benefits of any precaution and community expectations,” they continued. “This approach, known as the ‘reasonable person’ standard, is a fundamental feature of modern tort law nationwide. In medical malpractice cases, state courts have been gradually shifting from reliance on custom toward a reasonableness standard.”

The standard of reasonable medical care is “the care, skill, and knowledge regarded as competent among similar medical providers in the same or similar circumstances,” according to the restatement. The authors pointed out that the reasonableness standard “does not require above average or even average care…. [M]edical care need only be acceptable (above a minimum floor) to meet the standard.”

Robertson observed that this type of standard might seem odd. As a patient, “I want more than average care; I want excellent care,” he said. “But then we have to stop and say: What is the role of the law and the role of liability?”

If there is an “average” level of care, then half the care will be above average and half will be below average, he continued. “We’re saying, if someone really departs so far below that, that we need to step in with courts and judges and juries and lawyers — the very expensive process to sort out right and wrong and causation and non-causation — we don’t want to use that huge machinery of the law for half of the medical transactions that are below average,” he said. “We’re going to use it for the worst 10% or 20%, or maybe even less than that, and we’re going to count on the profession to try to police itself and to try to move that average upward.”

Evidence-Based Medicine and Practice Guidelines. The authors noted that medical decision-making has changed over the last 40 years, such that “the foundation for decision making has shifted away from subjective judgments and reliance on authorities toward a formal analysis of evidence.” The ALI restatement explicitly incorporated practice guidelines offered as evidence in malpractice cases, as long as a court finds that the guidelines are relevant and authoritative.

Although the restatement doesn’t see nationally recognized guidelines as an absolute safe harbor, it “encourages judges and juries to regard such a fact as exculpatory,” the authors wrote. “The restatement identifies adherence to appropriate guidelines as sufficient evidence that the standard of care has been met, but nonadherence to guidelines remains insufficient to establish negligence.” For their part, plaintiffs will be able to introduce expert testimony “that refers to guidelines as evidence of negligence, and defendants will almost universally need expert witnesses to defend their care as well, setting up a typical battle of the experts.”

Physician-Patient Communication. The restatement also discussed how doctors and patients communicate once harm has occurred. “Admissions by physicians of having provided substandard care can establish liability without the need for additional expert testimony, but only if those ‘statements are sufficiently detailed and direct,'” the authors wrote. “The restatement thereby attempts to balance ethical desires to speak with candor, to express regret for a bad outcome, and to restore a trusting treatment relationship with the right to legal redress for negligence.”

“Our Standard All Along”

Craig Conley, JD, a medical malpractice defense attorney with Baker Donelson in Memphis, Tennessee, said in a phone interview that the principles in the restatement have “been our standard all along. The standard of care is considered what a reasonable provider would do in similar circumstances.”

However, he added, there does seem to be some variation in how courts determine what type of care is reasonable. “Here in Tennessee, it’s more based on [the] locality, and it varies based on the resources available,” Conley said. “You don’t have the same resources available in a rural setting as you would in an urban setting. But in Mississippi, where I’m also licensed, it’s more of a national standard of care; they don’t have that locality rule.”

Conley said he was cautious about having health professionals rely on guidelines as a defense. “I don’t think that’s workable … There is no cookbook method to practicing medicine,” he said. “Nurses and physicians alike are all allowed to use their judgment … when addressing a situation with a patient, and all patients are different. It’s a slippery slope for them to rely on a guideline; I think it’s better for them to be saying, ‘I relied on a reasonableness standard based on my education, training, and experience.'”

Robertson said he hopes that physicians realize they “should not fear liability if they’re just practicing good medicine. So, keep your eye on the ball. Keep your eye on the patient’s needs. Keep your eye on what the science recommends … American doctors are probably too scared of liability when, in fact, if they’ve got a standard insurance policy, they literally never have to pay a penny out of pocket in liability.”

“I and my co-authors think that we need to sort of ratchet down the alarm and the stress and just recognize this liability system is out there, because patients sometimes get hurt and sometimes care falls below the standards, but doctors aren’t going to be bankrupted; they’re not going to lose their houses; they’re generally not going to lose their hospital privileges,” he said. “This is just a background system to catch when things do go wrong.”

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