The new standard for medical malpractice: What changed?

In an interview with Medical Economics, Daniel Aaron, M.D., J.D., explains how the American Law Institute's new restatement of the law of medical malpractice moves away from the long-standing "customary practice" test — and toward a more evidence-based legal standard.

"Traditionally ... they were assessed based on custom. So the question is — what do most doctors do?" Aaron said. "That can actually be a little bit frustrating because doctors tend to like to follow the evidence, and evidence often evolves."

The new framework centers on reasonableness — a standard that evaluates physician decisions based on rationality, benefit-risk analysis and alignment with evidence-based medicine. "It allows doctors to follow the evidence a little bit more and now hew to what other doctors are doing," he said.

He also raised concerns about "customary corruption," in which clinical practices shaped by industry marketing could be upheld in court — regardless of their medical validity.

"We don't want to see this incentive to shape medical customs being enforced by medical malpractice law," Aaron said.