Written by Shannon Markus
Spoon Feed
The American Law Institute’s (ALI) first restatement of medical malpractice law shifts from “customary practice” to “reasonable medical care,” integrating evidence-based medicine, clarifying liability standards, discouraging defensive medicine, and promoting transparency, while balancing ethical communication and legal accountability.
Less CYA… more EBM – practicing medicine with less fear
In the litigious era we live in, physicians’ fear of liability drives “defensive medicine,” as malpractice cases affect about a third of all doctors. The ALI has approved its first restatement of medical malpractice law, outlining new standards for resolving claims. This serves to help states clarify and improve their laws, though it does not directly change state laws.
The updated standard shifts from reliance on “customary practice” to a more patient-centered concept of “reasonable medical care,” incorporating evidence-based medicine into malpractice cases. This change acknowledges that some physicians may be slow to adopt medical advancements, relying instead on outdated training. The restatement affirms that adherence to appropriate guidelines is sufficient to meet the standard of care, but non-adherence alone does not establish negligence. This reassures physicians that following best evidence, even when it conflicts with outdated guidelines, won’t be penalized in court. Additionally, it considers the “resources available to the provider” in different practice settings (hello, rural EM!) and emphasizes provider communication, particularly regarding medical errors. It states that only “detailed and direct” admissions of substandard care could establish liability without additional expert testimony. (So… a little terrifying. Note to self: honesty is good, but maybe with a touch of strategic phrasing.) However, it also discourages institutional “deny and defend” malpractice strategies, advocating instead for transparency, root cause analyses, support, and fair compensation when care is unreasonable.
How will this change my practice?
Defensive medicine can drive up healthcare costs, lead to unnecessary testing, and impact the quality of care. I’m not immune. It gives me the “ick” whenever I feel pressured to order extra tests purely for liability reasons – especially when explaining these choices to my residents. The new guidelines give me more peace of mind practicing EBM. That said, many courts will still rely on “customary practice,” so I’d be lying if I said this changes everything overnight. Unless strong evidence supports doing otherwise, I won’t be routinely going against prevailing practices just because of this update.
Source
A New Legal Standard for Medical Malpractice. JAMA. 2025 Feb 26. doi: 10.1001/jama.2025.0097. Epub ahead of print. PMID: 40009364
