How Medical Malpractice Standards of Proof Are Changing

When a doctor or other healthcare professional is sued for medical malpractice, the evaluation of the correctness their actions is traditionally based on prevailing practices among peers in the same field. If those actions were in accord with those of their colleagues, they could evade liability. However, this may change radically due to a recent revision of one of the seminal sources of medical malpractice law.

The Restatement (Third) of Torts—Medical Malpractice, issued in 2024, shifts the focus towards evidence-based criteria for medical decisions, recognizing that physician’s customary practices may not necessarily equate to what is reasonable or scientifically valid within a specific medical context. This change is underpinned by years of medical research advancements, development of clinical guidelines and improved systems for assessing healthcare quality.

The Restatement significantly modifies the standards of professional care in the following ways:

• Redefining the role of custom as a standard — The Restatement states that while adherence to medical customs is relevant, it is not conclusive. Courts are now advised to view customary practice as merely one factor among many. This means that physicians can no longer use conformity with common practices as an absolute defense against liability.
• Adopting the “reasonable physician” standard — The assessment of a physician’s conduct now hinges on what a reasonable practitioner would have done under similar circumstances, with consideration given to current scientific knowledge and acceptable medical outcomes. This approach integrates the principles of evidence-based medicine.
• Elevating the importance of clinical guidelines and evidence — The Restatement places greater emphasis on the enhanced evidentiary significance of clinical guidelines, consensus statements, and the best available evidence. Expert testimony, which previously may have predominantly focused on customary practices, is now expected to align with these guidelines.
• Increasing judicial oversight — Judges should more rigorously evaluate the basis of expert witness testimony, ensuring it reflects widely accepted scientific methods rather than personal preference. Expert opinions lacking solid scientific backing are more likely to be dismissed.
• Accounting for innovation and emergencies — The Restatement acknowledges that deviations from standard practices may be necessary in cases of innovative treatments or unique emergency situations. Legal standards should accommodate such deviations where justified.

This move towards an evidence-based framework is likely to result in more scientifically accurate outcomes in medical malpractice cases, but it also raises the bar for plaintiffs. Their attorneys must now build a compelling case based on deviations from what is considered reasonable according to well-supported medical evidence.

However, the new framework could benefit plaintiffs by reduce the “conspiracy of silence” effect, whereby local physicians might hesitate to testify against their peers. Plaintiffs can now leverage national guidelines or impartial expert evaluations to challenge subpar medical practices.

At the law firm of Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP in St. James, New York, we use a network of medical and investigative resources to develop effective medical malpractice cases for clients across Long Island. To learn how we can help you, call us at 631-360-0400 or contact us online.