The American Law Institute has approved its first-ever Restatement (Third) of Torts: Medical Malpractice, establishing a new legal standard that moves away from customary practice toward evidence-based medicine. The change, approved May 21, 2024, redefines the standard of care as "the care, skill, and knowledge regarded as competent among similar medical providers in the same or similar circumstances."

The restatement—published as a special communication in JAMA—incorporates practice guidelines and scientific evidence into malpractice determinations while maintaining that "those who have less than median or average skill may still be competent and qualified."

As David M. Eddy, MD, PhD, explains in his 2011 article The Origins of Evidence-Based Medicine—A Personal Perspective, published in the AMA Journal of Ethics: "Medical decision-making has gone through a fundamental change in the last 40 years. Simply put, the foundation for decision-making has shifted away from subjective judgments and reliance on authorities toward a formal analysis of evidence."

Approximately one-third of physicians will face malpractice lawsuits during their careers, noted one of the special communication authors, Daniel G. Aaron, MD, JD, of the SJ Quinney College of Law, University of Utah, Salt Lake City. While malpractice insurance provides physicians, especially those in larger practice settings, with almost complete financial protection from court judgments and litigation costs, lawsuits carry additional consequences, including "reporting requirements to boards of medicine, which can create public records, and potential limits on hospital privileges."

The restatement makes several key changes to existing malpractice law:

• Shifts from strict reliance on medical custom to a "reasonableness" standard.
• Explicitly incorporates evidence-based practice guidelines as evidence in malpractice cases.
• Modernizes informed consent requirements to recognize that "patients today often have choices among different treatment approaches rather than just the right to refuse treatment."
• Clarifies that physician admissions of substandard care can establish liability without additional expert testimony, but only if those "statements are sufficiently detailed and direct."
• Addresses physician-patient communication after unanticipated harm.
• Requires truthful answers to patient questions about physician skill, experience, and financial interests.
• Provides guidance on structuring practice environments to promote patient safety.

The authors noted that while the new standard represents a significant shift, "physicians should recognize that, at least for now, many courts will continue to rely significantly on prevailing practice in assessing medical liability."

While states may adopt the new recommendations at different times and to varying degrees, the restatement offers what the authors described as "an opportunity to reconsider how medical negligence will be assessed, and to focus more directly on promoting patient safety and improving care delivery."

The ALI, founded in 1923, is the legal equivalent of the National Academy of Medicine and is a broadly constituted group of judges, professors, and practicing attorneys who periodically synthesize existing law and identify important legal trends.

Author disclosures can be found in the special communication.