Commentary
Article
Medical Economics Journal
A physician and health care attorney breaks down the American Law Institute’s recent restatement of the law of medical malpractice.
Daniel Aaron, M.D., J.D., a physician, attorney and co-author of a JAMA article analyzing the American Law Institute's restatement
A new legal framework from the American Law Institute (ALI) could reshape how courts evaluate medical malpractice cases. For the first time, the ALI has issued a dedicated restatement of the law of medical malpractice, marking a shift away from the long-standing standard based on customary practice — what most doctors typically do. Instead, the updated framework centers on what constitutes reasonable care and encourages courts to consider evidence-based guidelines, patient interests and evolving clinical knowledge in determining whether a physician met the standard of care.
To better understand what this means for physicians and their day-to-day decision-making, Medical Economics sat down with Daniel Aaron, M.D., J.D., a physician, attorney and co-author of a recent JAMA article analyzing the ALI’s new approach. Aaron explained how the restatement aims to modernize malpractice law in ways that support clinical reasoning, reduce fear-driven “defensive medicine” and reinforce the use of legitimate, evidence-based guidelines in patient care.
The following transcript has been edited for brevity and clarity.
Daniel Aaron, M.D., J.D.: When courts hear cases, they often turn to what’s called a restatement of law. The ALI issues a restatement that lays out what the law is in a certain area, but it can also add adjustments where it feels the law could improve in particular respects. So in tort law, which is [essentially] the central area where a medical malpractice case is heard, there is a restatement that dates to around the 1960s. It hasn’t been updated in a long time, and it’s been a long project for the ALI to update that to aid judges in resolving tort, and specifically medical malpractice, cases. While trying to create the Third Restatement of Law, the ALI realized there was so much content about medical malpractice that they had to spin it off into its own section. There is a lot of literature on medical malpractice that makes it unique and complex, so we have created the first-ever restatement of medical malpractice law. The ALI is akin to medical institutions like the American Medical Association, so this is a pretty big deal.
Daniel Aaron, M.D., J.D.: Traditionally, when doctors were brought into court for a medical malpractice case, they were assessed based on custom. The question was, “What do most doctors do?” And that can be a little frustrating because doctors tend to follow the evidence, and evidence often evolves. There was at least some level of risk in adjusting one’s practice to new evidence if other physicians were practicing differently. The new standard implements what’s called reasonableness, which is the idea that what you’re doing should be based on rationality, considering the benefits and risks — which is very similar to the notion of evidence-based medicine. Essentially, the standard of reasonableness imports this idea of benefits and risk in evidence-based medicine and puts it into the law, which allows physicians to practice more in accordance with the evidence based on what’s reasonable. This allows doctors to follow the evidence a little more.
Daniel Aaron, M.D., J.D.: Most doctors do not [incur] even a single penny of financial liability because of the serious protections that we have in law for physicians and their insurance policies. So by and large, doctors never have to pay a single penny; the physician who does have to pay a single penny is exceedingly rare. The restatement explicitly acknowledges that courts can consider differences among groups of providers. If 20% of doctors follow a particular practice, that might be legitimate because you have a group, and it’s OK to have differences in how medicine is practiced, as long as those differences are reasonable. Custom is still important, so one should consider what other doctors are doing. One shouldn’t operate only in a vacuum in medicine.
Daniel Aaron, M.D., J.D.: Most guidelines that physician organizations issue are likely to be legitimate, assuming these are the mainstream medical organizations like the American Medical Association, the American Academy of Pediatrics and so on. In a sense, I think physicians should do what they generally do, which is to follow their organization’s guidelines.
Daniel Aaron, M.D., J.D.: If there is a practice that everyone follows, it would remain very hard to be held liable for that because you would have to be regarded as not competent under the standard. And most likely, if everybody is doing something, then it’s regarded as competent to do that. There are customary practices that physicians sometimes engage in that are not evidence based, and the majority of physicians may perform them. Still, even then, you’re going to have many physicians who disagree with that practice and may not regard that as competent, right? So, if everybody is doing something, finding liability would be very hard. But if you do have a contingent of doctors who think that something is unreasonable, there would be more of a prospect of liability. So for unanimous practices, I think the odds of liability are low.
Daniel Aaron, M.D., J.D.: While this is a significant change, it’s not earth-shattering. It’s a practical, incremental means to improve medical care and the medical malpractice cases that sometimes follow this care. It’s wonderful to see the ALI recognizing the importance of evidence-based medicine and shaping the law around that importance.
Stay informed and empowered with Medical Economics enewsletter, delivering expert insights, financial strategies, practice management tips and technology trends — tailored for today’s physicians.