Lawfare and market design: New legal standard for medical malpractice

 In the U.S. at least, a not insignificant part of medical practice (sometimes called "defensive medicine") is shaped and enforced by medical malpractice suits. The American Law Institute has formulated new guidelines for such suits.

Aaron DG, Robertson CT, King LP, Sage WM. A New Legal Standard for Medical Malpractice. JAMA. Published online February 26, 2025. doi:10.1001/jama.2025.0097 

"Abstract
Importance  Patients in the US have persistent needs for safe, evidence-based care. Physicians in the US report fear of liability risk and the need to practice “defensive medicine.” In 2024, the American Law Institute revised the legal standard for assessing medical negligence. Understanding the implications of this change is crucial for balancing patient safety, physician autonomy, and the legal system’s role in health care.

Observations  The updated standard from the American Law Institute shifts away from the traditional reliance on customary practice toward a more patient-centered concept of reasonable medical care. Although this revised standard still includes elements of prevailing medical practice, it defines reasonable care as the skill and knowledge regarded as competent among similar medical clinicians under comparable circumstances and acknowledges that, in some cases, juries can override customary practices if they fall short of contemporary standards. The restatement also embraces evidence-based practice guidelines, while leaving questions open about the variations in the quality of those guidelines. The restatement makes additional recommendations regarding informed consent and other aspects of physician-patient communication.

Conclusions and Relevance  The new standard of care from the American Law Institute represents a shift away from strict reliance on medical custom and invites courts to incorporate evidence-based medicine into malpractice law. Although states may adopt the recommendations from the American Law Institute 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. Nonetheless, physicians should recognize that, at least for now, many courts will continue to rely significantly on prevailing practice in assessing medical liability."

 ...

"The restatement from the ALI centers medical negligence on reasonable care rather than on customary care. It reads: “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.”27 The restatement reassures physicians that its competency-based standard of reasonableness does not require above average or even average care. The comments accompanying the restatement observe that “those who have less than median or average skill may still be competent and qualified.”28 In other words, medical care need only be acceptable (above a minimum floor) to meet the standard.

"The restatement lists circumstances that may be relevant in determining reasonable medical care, including “the state of medical knowledge and the treatment options available at the time,” with the commentary acknowledging the importance of “prevailing professional practices” (ie, custom).29 The restatement takes account of the “resources available to the provider in the particular location or practice setting” in assessing the reasonableness of care, but it no longer factors in deference to the practice habits of physicians within any given locality or community.27

"Physicians have, at times, been slow to adapt to changes in medical science, relying instead on habits from their own, possibly decades-old training, which may reproduce structural inequities.30,31 Much of what is learned in medical school and training will change during practice.32 Examples include (1) cardiac stenting may be no better than medical management for stable coronary artery disease,33 (2) use of low-dose aspirin to prevent cardiac arrest may be harmful for many patients,34 (3) many older adults are prescribed medications on the Beers list that may harm their health,35 (4) many cancer treatments do not serve patient interests,36,37 and (5) opioids are far riskier than commonly believed 20 years ago.38,39 Although the restatement from the ALI will allow physicians to point to “prevailing professional practices,”29 it will also allow injured plaintiffs to point to the best scientific evidence and argue that a reasonable physician would have practiced accordingly. "