The American Law Institute (ALI) recently approved a new “Restatement of the Law” on Medical Malpractice, which is part of the Restatement (Third) of Torts.

First off, what is the ALI and what is a Restatement? The ALI is an organization of legal experts—according to its website, “eminent judges, lawyers and law professors from all areas of the United States and from many foreign countries, selected on the basis of professional achievement and demonstrated interest in improving the law.”

The ALI periodically publishes the Restatement of the law in various areas. The Restatement is supposed to reflect the common law and its statutory elements, “and reflect the law as it presently stands or might appropriately be stated by a court.” Thus, the ALI reviews the common law (court made law) and statutes and formulates legal principles in a given area.

Up to this year, there had never been a Restatement on medical malpractice. Much of this Restatement repeats familiar legal principles such as: “The standard of reasonable medical care is the care, skill, and knowledge regarded as competent among similar medical providers in the same or similar circumstances.” This principle is fully consistent with Arizona law.

But there are two big takeaways from this Restatement. First, in Section 5 and the comments regarding this section, the Restatement makes clear that “customary practice” does not necessarily create the standard of care. Rather, the analysis is multi-factorial, and “the state of medical knowledge” is important. Thus, it may well be that “customary practice” is outdated and falls short of current medical knowledge.

Second, in its discussion of the need for expert testimony, the Restatement addresses “evidence-based” medicine and states: “proof that the provider complied with a practice guideline established by an authoritative body is sufficient to support, although not compel, a finding that the provider did not breach the standard of care.”

At the same time, the Restatement does not say that failure to comply with a practice guideline is sufficient to prove breach of the standard of care.

Many commentators have said that the Restatement has created a defense for evidence-based medicine/guidelines such that if a doctor establishes that he or she relied on medical literature or guidelines, there was no negligence.

It is a sure thing that defense lawyers will argue that compliance with guidelines insulates medical practitioners from liability. On the patient's side, one will emphasize that mere custom is no longer a defense. Rather the medical provider must follow a standard of reasonableness based on the state of current medical knowledge.

Whether this Restatement will change anything is unknown. The fact remains that the analysis of whether there was malpractice is based on numerous case-specific factors. Practice guidelines are always at play in these cases, and fights over their meaning and implications for any particular case will continue.