A New Legal Standard for Medical Malpractice From the American Law Institute
13:37 Share

From the JAMA Network, this is JAMA Clinical Reviews, interviews and ideas about innovations in medicine, science, and clinical practice. Hello, and welcome to our listeners around the world. You're listening to JAMA Clinical Reviews, and thanks for joining us. I'm Dr. Gregory Kerfman, and I'm the executive editor of JAMA. I'm speaking today with Professor Christopher Robertson,

who is professor of law at Boston University School of Law. Professor Robertson was the author of a recent special communication article now published at JAMAnetwork.org, which is titled A New Legal Standard for Medical Malpractice. His co-authors are Daniel Aaron, Louise King, and William Sage. Professor Robertson, welcome to the podcast. Oh, it's my pleasure to be here. Thanks.

Now, to start us off, we're going to be discussing a new standard for medical malpractice. And I wonder if you could please sketch out the scope of the topic. How frequently are physicians faced with a malpractice lawsuit? And does this depend on a physician's specialty?

Well, the research shows that physicians are really preoccupied with medical liability risk. And I just want to start off by saying it's important partly because physicians think it's important and physicians worry about it a lot.

But the research shows that it's incredibly rare for a physician to ever have to pay a single penny out of pocket in a medical malpractice judgment or claim. Liability insurance covers physicians quite robustly in America, and judgments are hardly ever beyond that level. But nonetheless, the average physician is expected to get 0.35 paid medical malpractice claims over the course of their entire career, and

And in some specialties, like the surgical specialties, that can be above 1.0, more than one paid claim over the course of the entire career. Or in other specialties where it's a bit higher is OBGYN or ENT or urology. But again, overall, those paid claims come from the insurance companies and the institutions and almost never from the physicians themselves.

All right. Thank you for that. Now, a revised legal standard or a restatement of the traditional standard was released in May of 2024 by the American Law Institute.

And since many of our listeners may not be familiar with the American Law Institute, I wonder if you could tell them about the role of the Institute and its role specifically in defining this new legal standard for malpractice.

Sure. Some have called the ALI, as I'll call it, a sort of sister organization to the Institute on Medicine. And what it has in common is it's sort of a prestigious honorary organization for those elected to the ALI. It consists of judges and senior attorneys and law professors. So it is an honor to get elected, but they also do an important work to try to clarify the law as it exists in the United States.

Much of the law is actually not federal law, right? It actually comes from the 50 states. And much of that law is actually common law, not from the legislatures, but rather from judges deciding opinion after opinion in a way that there's this accretion of law over time.

And the ALI provides an important role in what they call restatements in trying to sort of get their arms around what all 50 states are doing at any one time and trying to put some coherence and clarity on the law and where possible even help guide it forward to be the best version of itself. Not just clearer, but maybe where decisions have to be made, they're the right decisions that serve the purposes of litigation or the law more generally.

So ALI doesn't have any official power in this system, but it has a lot of persuasive authority so that when a state Supreme Court is deciding which way to go on a question, it will often look to the ALI's restatement and say, well, this is the guiding rule, and so we hereby adopt it for this state, say Massachusetts or Illinois. So that's the important role for the ALI. Now, in your article, you point out that the traditional standard is

for medical negligence was based on what is called customary practice. And I wonder if you could define customary practice for our listeners. Right. So the customary practice standard of care or the community of physician standards, as it's sometimes called, is really descriptive and behavioral. I've called it sociological in that it purports to just say what physicians tend to do in a given circumstance.

And so that might be, for example, if the vast majority of physicians, when they're confronted with a patient, say age 50, they just give the patient a PSA test, a prostate screening antigen test, without really weighing the costs or the benefits of it or going through a robust informed consent process. If that's what physicians do, then it would form the community-based, custom-based standard of care process.

really aside from whatever the science or the best practices or the national practice guidelines recommend. So that's the community-based standard. It really refers to what physicians actually do in a given circumstance. Okay, that's great. Now, in contrast, now we're going to have a new legal standard, which is based on a patient-centered concept that does involve clinical practice guidelines.

And I wonder if you could please describe the new legal standard and tell our listeners how it differs from the traditional standard. Well, the first thing to acknowledge is it's new in one sense that the ALI has done its work and issued this clarificatory restatement that's supposed to be a guiding light for the state courts. But the ALI is a pretty conservative organization, and they were only comfortable in doing that because many states had already gone in this direction in one way or another.

And the first thing to recognize about this new standard is it starts with the word "reasonable." It's a standard of reasonable medical care. And in the law, reasonable has always been, in contrast to that custom-based standard, an objective standard. By objective, we mean it actually optimizes what is appropriate to do in the world based largely on the costs and benefits.

This goes back to a law and economics tradition as one strand of this thinking going back to the 1930s saying that we need to really look at the costs and the benefits and the trade-offs of any given decision and do what's right for all the people that could be affected by the decision. So that's reasonable care and it should be quite familiar to really anyone because we use those sorts of trade-offs in our own life in making decisions about what's ideal.

And so you said it was a patient-centered standard, and there is a sense in which anyone that could be affected by a physician's care, foreseeably, has to be considered. And so it's not just whatever the physicians tend to do historically. It's what they should do based on the costs and the benefits associated.

and really the science that measures those costs and benefits over time. And that's where you mentioned the National Practice Guidelines. The restatement has a specific section in this new part that points to practice guidelines and says, if a physician is practicing in compliance with the guidelines, that is sufficient or it can be sufficient to rebut a claim of medical negligence.

So if the national practice guidelines say don't just routinely give a PSA test to a 50-year-old male, instead weigh the costs and benefits through a robust informed consent practice, then that national practice guideline protects the physician against claims of medical negligence.

and the restatement has gone to some pains to try to make room for what we now call evidence-based medicine, that's one of the factors that's going to go into what reasonable care requires is, well, what does the science show and what would be appropriate in these circumstances? What does the restatement say about physicians expressing regret for an adverse outcome?

As many of your listeners may know, this has been an area for about the last 25 years that has been of intense interest. And on the one hand, if someone admits that they did something wrong after a traffic accident, if you get out of your car and say, I ran the red light, I'm sorry. Well, you saying you read the red light, that's actually potentially evidence that can be used against you. And that's a fundamental feature of the law in many domains.

But what people have tried to do in this context around medical malpractice is to facilitate physicians expressing regret for a bad outcome without necessarily accepting responsibility or liability for there being any negligence in producing that bad outcome.

Because, of course, in a lot of settings, whether it's an emergency room or an oncology clinic, there's going to be a lot of bad outcomes, but of course that doesn't mean that they're due to negligence. So the restatement has tried to clarify that mere statements of regret for an outcome are not admissions of negligence.

This goes into a larger effort that the restatement is trying to make room for, which is to break down the sort of adversarialism when a bad outcome happens and instead move towards a problem-solving resolution to make sure that our healthcare systems can actually become safer over time. And the thought is that the bunker mentality where every hospital and physician is sort of denying that anything could ever go wrong is not helpful for making sure that things go right more often.

Just to be clear, I'm not speaking for the ALI. I and another one of the authors did serve as advisors to the project, so I'm not representing an official view of what the restatement is doing here, but this is really my interpretation. Now, earlier you referred to state law, and malpractice law is state law. How will different states implement the new legal standards?

As I suggested, some states are essentially already doing this and the restatement is really just kind of codifying what's already happening in some of those states.

But a lot of other states will be, you know, when cases come up over the next year, five years, really decades, the restatement project often goes for decades before it's revisited again. And so over that time, as they get tricky, difficult, metmal cases and have to decide exactly what the right jury instruction is, every single time one of the parties will be invoking the restatement and saying, hey, judges, this is the best thinking of the experts here.

They decided it dispassionately through a multi-year process. And so it will be a great opportunity for then each state Supreme Court to sort of come into line when they're ready to do so. But they really hold the power through their federal sovereign system. Now, to boil down the topic in the simplest terms, how will the new standard for medical liability affect how doctors think about medical malpractice?

Well, I think I can speak for my co-authors and I. We hope that it helps doctors be confident that if they follow the science, if they follow the best practices, that the courts will back them up, recognizing that bad outcomes can nonetheless happen.

And that when you have to choose between a herd mentality of just doing what's always been done versus doing what is reasonable under the circumstances with the science and the clinical practice guidelines behind you, you can be confident and really focus on creating systems that prevent medical errors and keep patients safe rather than a herd mentality or even worse, a bunker mentality. That's what I think is the best outcome for the new ALI restatement.

Okay, thank you. Do you have any closing thoughts for doctors in regard to the new legal standard for medical malpractice? Well, there's another section that also focuses on communication with patients, and it's worth revisiting this larger trend that's been in place for over 100 years of informed consent and placing the patient's autonomy in an important role. ALI has also clarified those principles in a really helpful way as well.

I'm Dr. Gregory Kerfman, and I've been speaking with Professor Christopher Robertson about a new legal standard for medical malpractice. You can find a link to his JAMA article in this episode's description. And thank you very much, Professor Robertson, for a very illuminating discussion of this important problem. My pleasure. Thank you. This episode was produced by Daniel Morrow at the JAMA Network.

To follow this and other JAMA Network podcasts, please visit us online at jamanetworkaudio.com or search for JAMA Network wherever you get your podcasts. Thanks for listening. This content is protected by copyright by the American Medical Association with all rights reserved, including those for text and data mining, AI training, and similar technologies.