Document Type
Article
Publication Date
Spring 2024
Abstract
The standard of care for health care providers proposed by section 5 of the Restatement of the Law Third, Torts: Medical Malpractice marks a fundamental shift in the American Law Institute's position on professional tort liability. According to both conventional wisdom and prior Restatement provisions, the standard of care for physicians is determined by their customary practices. Professionals alone are given the unique privilege to set their own legal standard of care. However, the proposed section 5 departs from this position. Instead, reasonable care for health care providers is defined as conduct "regarded as competent" by medical peers. Customary practices are relevant but do not bind the jury.
In reality, the step taken by section 5 is much less radical than the hornbooks and legal encyclopedias would suggest. Many states have already abandoned the custom-based standard of care, and others ignore it in practice. As a result, the law in action already resembles the provisions of the new Restatement. I strongly endorse this new definition.
This paper is divided into three parts. Part II explains and defends the new definition of the medical malpractice standard of care. Part III describes the evidence that juries can responsibly handle their responsibility to apply this standard. Part IV discusses the recent debate in the American Law Institute (ALI) about the proposed language.
Recommended Citation
Philip G. Peters Jr.,
Modernizing the Medical Malpractice Standard of Care, 52 Southwestern Law Review 465
(2024).
Available at: https://scholarship.law.missouri.edu/facpubs/1204
